4.3.1 NPDES Program Resources

Since the State’s NPDES program description describes the personnel and funding necessary
to administer the NPDES permitting program, this description needs only to be supplemented to
demonstrate that resources such as staffing are adequate to implement the sludge management

program.

4.3.2 Part 501 Program Resources

The State program submission must address staffing, itemize costs, and estimate funding to
effectively administer the sludge management program. Each of these areas is described separately

below.

ffing [4 01. 1

The staff description must include the number of employees with program responsibilities,
their occupations and duties (e.g., administration, permitting, compliance, or enforcement). The
State’s program description is not required to contain individual job descriptions, but should describe
general minimum qualifications (academic and/or experience) required for personnel in each program
area. The staff description should delineate whether these positions have actually been filled, and if
not, when they are scheduled to be filled. In addition, the description should identify the following
special considerations, when appropriate:

© Personnel dividing time between two or more functions (care should be taken not to
double count available personnel);

« Persons who may be working part-time; and

¢ Additional assistance from other offices (i.e., technical expertise or legal support from
other offices).

Ttemi i 40 CFR 501.12(b)(2)

The program description must contain an itemized estimate of costs expected to be incurred in
the first two years for program development and implementation: “This description should project
personnel and resource needs and translate these resources into work-years or FTEs (full-time
employees). EPA recommends that the State conduct a workload analysis and present it in the
program application. This analysis should address, each component of the program (e.g., applications
processing, permitting, compliance monitoring, and enforcement). . The State should be sure to use a

2/

47 aaa



of the statute). As with the NPDES program, the statute should indicate that a sludge permit will not
be issued if the EPA Regional Administrator objects to its contents. :

Finally, EPA’s regulations limit the duration of permits to a maximum of five years. If a State
statute authorizes a permit duration longer than five years (e.g., a ten-year permit), the statute must
be amended. However, statutes containing a more stringent standard (i.e., a period of less than five
years) need not be amended.

ri Require Submission of Information from the Regulat mmunit}

State law must give the agency responsible for implementation of a sludge management program
the authority to require information from the regulated community. The State must be able to

require the following information as part of a permit application:

¢ Activities which require the applicant to obtain a permit;
« Name, address, and location of treatment works for which permit is being sought;

* Operator’s name, address, telephone number, ownership status, and status as Federal, State,
private, public, or other entity;

e Whether or not facility is located on Indian lands;

¢ Relevant environmental permits held, or for which application has been submitted;

e Topographic map;

e Sludge monitoring data;

e Description of sludge use and disposal practices;

e Land application plan;

« Annual sludge production volume;

© Information required to determine appropriate permitting standards under 40 CFR 503; and
e Any other information the State Director needs to assess sludge use or disposal practices, to

determine whether to issue a permit, or to ascertain appropriate permit requirements.

In addition to permit applications, the State must have the authority to require compliance
information from the regulated community and information necessary to determine whether or not

cause exists for the modification, revocation and reissuance, or termination of the permit. Finally,

3-7

27



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‘i ama orem mgt ee

ben eran 0 Ann RNR LAP A ER PPA 2

simi ao ALE 6 a ae amt 2 Sd errant em

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a gE



4.6 ENFORCEMENT [40 CFR 501.17 and 123.27]

At a minimum, all State sludge management programs must have the authority to invoke
timely and effective enforcement remedies. The checklist at the end of the chapter outlines both
required and suggested components of a comprehensive enforcement management strategy for the
State sludge management program. Those requirements are briefly discussed in the following

Sections.

4.6.1 NPDES Program Enforcement

The enforcement authorities required for the sludge management program are identical to ~
those required for the existing NPDES program. The State NPDES enforcement authorities should
be compared to the Federal regulations to verify consistency and ensure they are adequate to
implement sludge requirements. More detailed information about enforcement authorities is provided
in the following section on Part 501 program requirements.

4.6.2 Part 501 Program Enforcement

In addition to ensuring adequate enforcement authority, a State seeking approval under 40

CFR Part 501 should describe its enforcement strategy and procedures. The narrative description of ©

this enforcement strategy should discuss the State’s informal and formal enforcement remedies,
strategies, and policies. The minimum enforcement requirements are discussed in greater detail in
Chapter 3. -

It is very important that any limitations and restrictions governing the use of the enforcement
temedies be disclosed. Thus, if State law requires certain actions be taken prior to initiating
enforcement actions (e.g., a conciliation meeting, a show cause hearing), they must be explained in
the program description. Obstacles which prevent the State from achieving the minimum

enforcement requirements must be removed.

vi imin: ind Admini: ive alti

The State’s program must describe each agency’s process for pursuing administrative fines,
civil litigation, and criminal prosecution, and the appropriate range of penalties for violations. The
discussion of the enforcement program must also include a synopsis of the relationship and
coordination between the permitting office, the inspection/compliance office, and State legal officials
(e.g., the Attorney General’s office). Finally, the enforcement discussion must address provisions to

ha

416



upon procedures for EPA review of State records, reports, and files relevant to program
administration and enforcement. Table 5-1 lists the reports required to be submitted to EPA.

TABLE 5-1. REPORTS TO EPA

e SEMIANNUAL SLUDGE VIOLATION REPORT

- Noncomplying Class I facilities

- Type and date(s) of noncompliance events

- Type and date(s) of action(s) taken

- Status of action(s) taken and date(s) of resolution

e ANNUAL REPORT

- Semiannual sludge violation report information

- Updated inventory

- Non-class I facility noncompliance information

- Number and type of Class I and Non-class I violations for FY

- Class I and Non-class I facilities brought into compliance for FY
- Facilities 6 months behind compliance schedules

- State compliance monitoring results

5.2.5 mplian nitori forcement

The MOA must specify provisions for coordination of compliance monitoring activities by the
State and EPA. Such provisions may include the basis on which EPA will select facilities or
activities for its own inspections. The MOA must provide for notification to EPA of scheduled State
inspections so that EPA may elect to participate in such activities. Furthermore, the MOA should
provide that EPA will notify the State of the inspections which it plans to perform (normally seven
days notice). EPA would not be required, however, to notify the State of any “surprise inspections”
designed to uncover possible criminal activity.

The MOA should also specify that periodic enforcement reports will be forwarded to EPA. The ‘
contents of the reports required to be submitted appear in Table 5-1. Coordination of sampling
activities between the State and EPA should also be set out in the MOA. Finally, it must also
describe the coordination of enforcement activities between the State and EPA. ©

5-3

57



State’s Formal Submission
Once a State revises its draft submission to address EPA comments, the State’s Governor
should formally transmit the final submission to the EPA Regional Administrator [as provided by 40

CFR 501.11(a)(1) or, for States modifying their NPDES program, in 40 CFR 123.21(a)]}. The State
needs to submit three copies of the final program submission to EPA.

Final EPA Review

The procedures for reviewing a State’s formal program submission are set out in 40 CFR
501.31 and 123.61. Within 30 days of receipt of a State program submission, the Regional
Administrator must determine whether the submission is complete. As a practical matter, if the State
has worked closely with EPA, there is little chance of a negative finding at this juncture. Prior to
issuing this finding, the Region will seek the concurrence of the Director of OWEP and the Associate
General Counsel for Water at EPA Headquarters. Assuming the State’s submission is complete,
EPA has 90 days to approve or deny the request for State program approval, although this period
can be extended if the State agrees. If the State’s submission is incomplete, the 90-day “clock” will
not commence until EPA receives the additional materials it needs.

Public Comment

Once a completeness determination is made, the EPA Region publishes notice of a State’s
application for approval of its sludge management program in the Federal Register and in the largest
newspapers in the State to attract Statewide attention. The EPA Region also mails notices of the
State’s application to all persons known to be interested in such matters, including all persons on
appropriate State and EPA permitting mailing lists and all treatment works treating domestic sewage
listed on the inventory which is submitted as part of the State’s application. The notice provides a
comment period of at least 45 days to allow interested members of the public to express their views
about the State’s program submission.

In addition, the notice indicates when and where any public hearings will be held, or if one has
not been scheduled, how interested members of the public may request that a hearing be held.’ It

specifies where and when the State’s submission will be available to the public and indicates the cost

‘EPA must provide at least 30 days notice to the public of the date and place of any hearing
which is scheduled.

2-5

/7



TV. COMPLIANCE TRACKING

A. Does the submission state that all Class I facilities will be inspected at least annually?

B. Does the submission state the frequency that each sludge use and disposal practice will be
sampled?

C. Does the submission state the frequency that all other facilities (non - Class I) will be
inspected and sampled?

D. Is the frequency adequate to ensure a compliance determination?

E. Does the submission describe the type of sampling and analyses which will be performed by
the State for each sludge use and disposal method to be regulated: 7

— 1. Monofills

_ 2. Co-disposal landfills

_— 3. Land application

_ 4. Distribution and marketing

— 5. Incineration

__._ 6. Surface disposal

7. Other (Specify: )

Are the sampling methods described consistent with applicable regulations?

. Are the analysis methods described consistent with applicable regulations?

m= a om

. Does the submission identify the laboratories to be used or are capable of conducting the
analyses? .

I. Does the submission include copies of sampling and analytical documentation forms and
chain-of-custody forms?

J. Does the submission describe procedures to review State compliance monitoring data and
facility self-monitoring data?

K. Do the review procedures include referral procedures for violations identified?

L. Does the program description describe the data management system for tracking permit
expiration, self-monitoring reports, violations, and enforcement?

V. ENFORCEMENT

A. Does the submission provide a plan for taking enforcement actions in response to violations?

— 1. Delineation of roles of the technical and legal staff ~
_. 2. Procedures to compile background information to support the enforcement action

_. 3. Procedures for interaction with other affected programs .

— 4. Time frames for conducting technical evaluation and determining appropriate response

4-22



it Applicati. ind _Signatori:

No permit system can be successful unless the permit writer has sufficient information about the
facility. In order to ensure the availability of this information, EPA regulations require that every
treatment works treating domestic sewage submit a permit application containing all pertinent data.
State regulations must require treatment works treating domestic sewage to submit the Tequisite
application information in a similar manner and time frame as specified by EPA. States are free to
design their own application form as long as it solicits the requisite information.

The application must be signed and certified by an appropriate signatory to ensure that the’ -
treatment works remains accountable for the contents [see 40 CFR 122.22 and 501.15(a)(4)].
Moreover, the regulations should include the deadlines for the submission of application information
established in the Federal regulations, as follows:

© Treatment works with current NPDES Permits must submit this information when their next .

NPDES permit application is due or 120 days after promulgation of applicable use and
disposal standards, whichever is sooner:

¢ All other existing treatment works must submit these data within 120 days of the
promulgation of applicable use and disposal standards unless the Director (State agency)
requests it sooner; and

© New treatment works are required to submit Permit applications at least 180 days prior to
commencing operations.

rmit ni}

Developing permit conditions for sludge often involves professional judgment regarding proper
use and disposal. Therefore, permit conditions must be clearly enforceable and as free from
challenge as possible. One method of limiting uncertainties is to put as much detail as possible
concerning potential permit contents into the State regulations. This precaution will help delineate
the extent of a State agency’s discretion in putting requirements in permits.

At a minimum, the State regulations must expressly note that the following conditions are to be
included in each treatment works’ permit:

© Federal and State sludge use and disposal standards;

¢ Compliance schedule;

3-14

«



State Statutory and Regulatory Authority and Case Law:

Remarks of the Attorney General:

IV. Authority to Conduct Compliance Monitoring Activities

Although the State's Sludge Management Program relies, in large part, on its permit program, the State's
sludge standards and requirements are enforceable, even in the absence of a permit. Consequently, to ensure that
proper sludge use and disposal practices are observed, compliance monitoring and enforcement activities must also
be authorized and carried out. State law provides the Department with authority for State personnel to enter private
premises, to inspect and sample sludge quality, and to require self-monitoring and reporting by permit holders.
The sections below discuss this authority in detail. *

A. Authority to Enter and Inspect Treatment Works or Other Use and Disposal Premises

State law provides the authority to enter and inspect premises used for generation, use, and/or disposal of
sewage sludge, as required by EPA in 40 CFR 123.26(c) [or 40 CFR 501.15(b)(9)(i-iv) and 40 CFR 501.16] to

gain program approval.

State Statutory and Regulatory Authority and Case Law:

Remarks of the Attorney General:

B. Authority to Sample Sludge Quality

State law provides the authority to take independent, representative samples of sludge to determine its quality
and to determine compliance with applicable sludge standards, as required by EPA in 40 CFR 123.26(a)-(d) [or
40 CFR 501.15(b)(9)(iv)] to gain program approval.

State Statuto: id latory Authority an Law:

Remarks of the Attorney General:



Enforcement

As previously noted, the State must have the authority to address violations quickly and
effectively. Where a State statute has specifically set out available administrative and judicial

enforcement powers, the regulations need only cross reference the statutory provisions.

In addition to a State agency’s own enforcement powers, the regulations should also indicate
how the public will be involved in the enforcement process. While the State need not provide for
direct citizen suit against noncompliant persons, there must be some opportunity to become involved .
in the State’s enforcement actions. EPA’s regulations allow the States to choose between several
public participation alternatives which are also used in the NPDES program. First, interested _
citizens may be granted the right to intervene in enforcement actions (administrative or civil
litigation, but not criminal actions). Second, where interested citizen intervention is not a right, the
State may still agree not to oppose such intervention. If this latter alternative is selected, the State
must also agree to investigate and respond to citizen complaints and publicly notice proposed
settlements of enforcement actions for at least 30 days.

3.3. ATTORNEY GENERAL’S STATEMENT

As part of its submission, a State program application must include a certification by the State
Attorney General (or State agency’s independent legal counsel) that the State agency has adequate :
legal authority to implement and enforce a State sludge program in accordance with minimum
Federal requirements. This document will explain the State agency’s authority to undertake the
various program functions. It must discuss the scope of the State agency’s legal authority as derived
from statutory, regulatory, and judicial sources. The statement should analyze the State agency's
power to adopt and enforce Federal standards, issue permits, conduct surveillance activities, and take
enforcement actions.

Where the Attorney General identifies significant differences (either more or less stringent)
between the Federal and proposed State program, those differences should be discussed in the
statement. Finally, the Attorney General must certify that all of the legal authorities cited in the
program submission either have been adopted or will be ‘fully effective at the time of program
approval. If new or revised statutory or regulatory provisions are being drafted, it is advisable to
provide a copy of the draft to EPA for comment. This approach will expedite final program
approval. A model Attorney General’s statement for the State to review is found in Appendix A.

3-21

LL



Public Notice of Permit Actions. The program description must delineate each agency’s

Procedures for ensuring public participation in the permitting Process. The agency must provide

public notice of all draft permits, permit modifications, permit revocation and reissuance, and permit
termination actions. If public notice procedures are detailed in the State regulations (see Chapter 3),
additional narrative descriptions of these procedures May not be necessary. If the public notice
details are contained in agency policy or a procedures manual, it is helpful ta include a brief
description of these procedures in the State’s Program description along with a copy of the manual.
Public hearing procedures should also be described.

4.5 COMPLIANCE EVALUATION PROGRAM [40 CFR 123.26 and 501.16]

Compliance monitoring activities are central to an effective sludge management program. It
is through these activities that the State identifies facilities whose practices threaten public health or
the environment. Consistent and accurate data collection and documentation are critical elements in a
reputable compliance evaluation program. The checklist at the end of this chapter outlines the
compliance activities which should be addressed in the State’s Program submission.

4.5.1 NPDES Program Compliance Monitoring

An approved NPDES State seeking a State sludge management program under 40 CFR Part
123 will most likely rely on compliance evaluation procedures used in its NPIDES Program. Such
States need only submit changes to these procedures which incorporate sludge compliance activities.
States must ascertain the applicability of water compliance procedures to sampling, inspection, and
analysis requirements for sludge, and modify those procedures to satisfy sludge requirements if
necessary. The following section on requirements for Part 501 programs contains more information

on this topic.

4.5.2 Part 501 Program Compliance Monitoring

A State seeking approval of a sludge management program under 40 CIFR Part 501 must
provide a detailed description of its compliance evaluation program. This program must reflect the
compliance monitoring procedures and requirements set forth in 40 CFR 123.26. These

requirements consist of:

© Procedures to maintain a comprehensive inventory of facilities and a schedule of reports
to be submitted by each facility; .

4-12 : CP



TABLE 3-4. STANDARD CONDITIONS TO BE PLACED IN ALL SLUDGE
USE AND DISPOSAL PERMITS

© Duty to comply

Compliance with standards

e State enforcement penalties

© Need to halt or reduce activities is not a defense
e Duty to mitigate noncompliance

« Proper operation and maintenance

e Duty to provide information as requested

e Duty to allow inspection and entry

* Monitoring, record keeping, and reporting
(generally)

. Signatory/certification requirements
© Notice of planned changes

e Notice of anticipated noncompliance
¢ Reporting other noncompliance

° Transferability of the permit

e Reopener

« Duty to reapply

3-17 =

ST



The program description must explain how each agency will receive, track, and evaluate all

notices and reports required to be submitted by permittees. Since States will use these procedures to
determine whether to seek enforcement against permittees, the procedures must be comprehensive
enough to evaluate and accurately track the information over time.

ions [40 CFR 501. nd 123.2 (2:

The Federal regulations require inspections of all Class I sludge management facilities at least
annually. All other sludge management facilities should be inspected on a routine basis. The
inspection should include sludge treatment and use or disposal sites and practices, where appropriate.
Inspections of facilities and activities subject to regulation are required in order to determine
compliance; to verify the accuracy of information submitted by permittees; and to verify the

adequacy of sampling, monitoring, and other methods used by permittees to submit information.

mpliance Sampling [40 CFR 501. 123.2

States must have the authority to conduct investigatory inspections, which include sampling
and other information gathering. Sampling must be conducted in accordance with appropriate
“chain-of-custody” procedures to ensure the admissibility of evidence in an enforcement proceeding
or in court.

Public Participation [40 CFR 501.16 23.26(b)(3).(4)

The sludge management program must encourage public participation. Often, violations may
be spotted by conscientious employees or private citizens before a State can identify them through its
inspections or sampling. The program description should describe procedures for receiving
information submitted by the public as well as the procedures for responding to public reports of
suspected violations.

mpliance ‘king Management Syst 1.16 an (4

The program submission must also describe each agency’s procedures for maintaining a
management information system which supports compliance evaluation activities. The compliance
management program should address the inventory, flow of information, enforcement screening, and

a data management system.

4-15

OF



C. Authority to Require Self-Monitoring and Reporting

State law provides the authority to require self monitoring and reporting on use or disposal practices and
sludge quality, as required by EPA in 40 CFR 122.48(b)(c). and 40 CFR 123.25(a)(19) [or 40 CFR 501.15(10)(i-

v)] to gain program approval.

State Statutory and Regulatory Authority and Case Law:

Remarks of the Attorney General:

V. Remarks on the Attorney General’s Authority to Enforce the Sewage Sludge Management Program

The Department(s) designated is a duly constituted body of the State’s Executive Branch and has been
granted enforcement powers. The sections below discuss this authority in detail.

A. Authority to Abate Violations of State Law

State law provides the authority to abate violations of State law as required by EPA in 40 CFR 123.27(a)(1)
for 40 CFR 501.1.(c)(S) and 40 CFR 501.17(a)(1)} to gain program approval.

State Statutory and Regulatory Authority and Case’ Law: .

. Remarks of the Attorney General:

B. Authority to Assess Administrative Penalties
State law provides the authority to assess administrative penalties in the amount of $ per day per

violation.

te Statutory and Regulatory Authority and Case Law:

1 e Attorney General:

AS

-

/O€



Regulatory Auth
(citations)
11. Notice requirements

a. Any planned physical alterations or additions
to permitted facility

b. Significant changes planned in the permittee’s
sludge use or disposal practice(s) or sites

c. Anticipated noncompliance resulting from
planned changes

d. Permit is nontransferable except after due
notice to Director

e. Other noncompliance reporting
Other relevant information which the Director
requests

12. CWA penalties for violation of permit conditions

a. Civil - $25,000/day/violation

b. Criminal (negligent) not less than $2,500
nor more than $25,000/day/violation and/or
imprisonment of one year

c. Criminal (knowing violation) -- not less than
$5,000 nor more than $50,000 per day of
violation, and/or imprisonment for not more
than 3 years

13. Need to halt or reduce permitted activity is not
a defense

14. Use of reopener - unexpired permit to be reopened
if any more stringent standard promulgated under
CWA Section 405

15. Duration of permit not longer than 5 years

16. Duty to reapply

C. Regulations on permit issuance procedures
[40 CFR 501.15(d)} [40 CFR 122.62] [40 CFR 122.64]
[ 40 CFR 124.3, 124.5, 124.6, 124.8, 124.10,
and 124.58]

1. Permit application

a. NPDES POTWs must submit application
information with their next application for
NPDES permit, or within 120 days of the
promulgation of an applicable standard

b. For sludge-only POTWs and other
treatment works treating domestic sewage,
submit an application if the Director
determines that a permit is necessary

PATTEM

3-27

YT



2. Compliance Inspection - The (State Agency) shall conduct field activities, including sampling and
nonsampling inspections, to determine the status of compliance with permit requirements. Inspection procedures
will be in accordance with State procedures for compliance monitoring and evaluations pursuant to 40 CFR 501.16
{and by reference, 40 CFR 123.26). For purposes of this MOA, the term compliance inspections includes (but
is not limited to): evaluation inspections, sample inspections, toxicity testing inspections, sludge sampling, and
groundwater sampling.

The (State Agency) and the Regional Administrator will develop lists of permittees subject to State
compliance inspections, pursuant to a neutral inspection scheme. The (State Agency) shall conduct compliance
inspections of all Class I permittees at least annually. The list may. be modified with the concurrence of both
parties. The (State Agency) shall also furnish an estimate of the number of other compliance inspections to be
performed during the year. The (State Agency) will give EPA at least days notice and the opportunity to
participate in its inspection activities. :

EPA or the (State Agency) may determine that additional compliance inspections are necessary to assess
permit compliance. If EPA makes a determination that additional compliance inspections are necessary, it shall
notify the (State Agency) and may request it to conduct these inspections. EPA retains the right to perform
compliance inspections of any permittee at any time, but will normally provide seven days notice to the (State
Agency) to give it an opportunity to participate. EPA will otherwise keep the (State Agency) informed of its plans
and results.

The (State Agency) shall also be responsible for entering all inspection data into the PCS (if the State Agency
has the capability to do so and the system is available to accept the data) and preparing a list of all noncomplying
Class I permittees in accordance with the regulations at 40 CFR 501.21. .

Reports on compliance inspections shall be available for review by the (State Agency) or the Regional
Administrator, as appropriate, within __ days of the date of inspection. The (State Agency) shall review each .
report to determine what, if any, enforcement action shall be initiated. Where the results of the inspection(s)
indicate that the permittee is in violation, the (State Agency) shall initiate enforcement action within __ days of
the date of the inspection(s) or make a decision in writing not to take any action. Priorities for the review of these
inspection reports and for initiating enforcement action will be specified in procedures set out in the program
description. .

3. Information Requests - Whenever either party requests information conceming a specific permittee and
the requested information is available from the files, that information will be provided within __ days.

B. Action Against Violators

The (State Agency) is responsible for taking timely and appropriate enforcement actions against persons in
violation of any sludge use or disposal practice requirements, compliance schedules, limitations, reporting
requirements, and other permit conditions, including violations detected by State or Federal surveys. The State
will notify EPA of all impending enforcement actions. EPA reserves the right to take timely and appropriate
enforcement action in the first instance when warranted (e.g., in interstate disputes).

The (State Agency) shall maintain procedures for receiving and ensuring proper consideration of information
submitted by the public about violations. If EPA determines that the (State Agency) has not initiated timely and
appropriate enforcement action against a violator, EPA may proceed with any or all of the enforcement options
available under section 309 of the CWA after notice to and consultation with the (State Agency). Prior to
proceeding with an enforcement action, EPA shall give the (State Agency) ___ days to initiate such enforcement
action. This notification may be made either at the periodic enforcement meetings, by telephone, or through written
communication. Such notifications shall not be required when EPA is exercising its emergency power under section
504 of the CWA. Additionally, EPA may join in any enforcement action taken by the State.

The (State Agency) shall immediately notify the Regional Administrator of any situation posing a substantial

endangerment to health, welfare, or the environment resulting from any actual or threatened, direct or indirect,
sewage sludge use or disposal practice.

S-11

S7



TABLE 1-1. STATES APPROVED TO ADMINISTER
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYST

PERMITTING PROGRAM
Alabama e Arkansas California
Colorado @ Connecticut Delaware
Georgia e Hawaii Illinois
Indiana e Towa Kansas
Kentucky ¢ = Maryland Michigan
Minnesota ¢ Mississippi Missouri
Montana e Nebraska Nevada
New Jersey e © New York North Carolina
North Dakota e Ohio Oregon
Pennsylvania Rhode Island South Carolina
Tennessee e Utah Vermont
Virgin Islands . Virginia Washington
West Virginia e Wisconsin Wyoming

1-4

THE
TEM (NPDES) :



TABLE OF CONTENTS

CONTENTS

1,

INTRODUCTION .....- ee ee eee eee eee eee et ee eee

PURPOSES OF THIS MANUAL ......--- ee eee eee ents
BACKGROUND OF THE SLUDGE PROGRAM ........-----++++e+
STATE INVOLVEMENT IN THE CLEAN WATER ACT SLUDGE

PROGRAM... eee eee eee eee et tee
1.4. SUPPLEMENTAL SOURCES OF INFORMATION ......------- +++
1.5. ORGANIZATION OF THIS MANUAL ..... 2... 6 eee eee eee eee

‘lL.
1.
1,

wpe

PROCEDURES FOR STATE PROGRAM APPROVAL, MODIFICATION,
AND WITHDRAWAL .. 1... ee eee eens
2.1 APPROVAL OF STATE PROGRAMS .....---- +s sete eee eee eee
2.2 PROGRAM MODIFICATION PROCESS

2.3. WITHDRAWAL OF STATE PROGRAMS

LEGAL AUTHORITY: ..... 0-0 cee eee eee eee eee eee ee tee
STATUTORY AUTHORITY ......-- 0. eee e eee eee ete
REGULATORY AUTHORITY ........- .

ATTORNEY GENERAL’S STATEMENT
STATUTORY AND REGULATORY REQUIREMENTS CHECKLIST ......

BO ww
ROE

PROGRAM DESCRIPTION .....------++> eee eee ents

4.1. PROGRAM SCOPE ........ 0c eee eect tee ete tees
4.2 PROGRAM ORGANIZATION AND ADMINISTRATIVE STRUCTURE ....
4.3. RESOURCES ........ eee eee eee eee eee te tet es
4.4 PERMITTING ......-- see eee r reer errr

4.5 COMPLIANCE EVALUATION PROGRAM
4.6 ENFORCEMENT ......--- ees e cece terres
4.7. PROGRAM DESCRIPTION CHECKLIST

MEMORANDUM OF AGREEMENT ...2-. 00ers

5.1 MEMORANDUM OF AGREEMENT FOR A NPDES PROGRAM ........
5.2 MEMORANDUM OF AGREEMENT FOR A PART 501 PROGRAM ......
5.3 MODEL MEMORANDA OF AGREEMENT .....- +--+ sees eee eee



B, REQUIRED STATE PROGRAM REGULATIONS

I. Definitions [40 CFR 501.2] [40 CFR 122.2] Stale Regulatory Authority
2 FR 124.2 (citations) .
(optional) Lo,

Are State regulatory definitions or their equivalents,
where provided, consistent with those found in the
Federal regulations for the following terms:*

A. Definitions with general applications

1. Treatment works treating domestic sewage
(to include Federal facilities)

. 2. Sewage sludge
3. Class I sludge management facility
4. Septage
5. Disposal practice .
6. Distributor
7. Facility :
8. Generator
9. Sludge management practice :
10. State Program Director
11, State sewage sludge management agency
12. Use or utilization practice
13. User
14. Disposer :
B. Definitions related to land application
1, Annual pollutant loading rate
2. Cumulative pollutant loading rate
3. Annual whole sludge application rate
C. Definitions related to sewage sludge monofill
1, Sewage sludge monofill Se
2. Sewage sludge unit
3. New sewage sludge unit ee
D. Definitions related to incineration
1. Reference air concentration ee 7
2. Sewage sludge incinerator . ee
3. New Source Performance Standards (NSPS)
[40 CFR Part 60] —_. 7

*NOTE: Definitions associated with specific sludge use or disposal practices tay change upon final
promulgation of the Part 503 technical standards.

3-24



4.

i. Information on each land application site, demonstrating its suitability on a land
application site selection plan which, at a minimum:
e Describes the geographical area covered by the plan
© Identifies site selection criteria
© Describes how sites will be managed
e Provides the permitting authority advance notice and opportunity to object
e Provides for public notice

j. Annual sludge production volume

k. Any information required to determine the appropriate standards for permitting under
40 CFR Part 503

1. Any other information deemed necessary

Are the data required, in permit application(s) appropriate and adequate to develop permit
limits and requirements?

. Permit development and contents:

1.
2.
3.

4.

Does the program description include a copy of a permit form for each sludge use and
disposal method to be regulated? *

Does the permit form contain the required contents and: standard conditions specified by
40 CFR 123 or 501? :

Does the program description clearly indicate that fact sheets will be developed for each
Class I facility permit? .

Does the program description clearly describe the review process for prepared permits?

. Permit issuance:

1.

Does the permit review/approval process include:

a. EPA review/approval
b. Administrative review/approval

. Does the program description clearly establish time frames and identify personnel

positions and responsibilities?

Permit application

Permit review and issuance of draft permit
Final permit issuance

Permit appeal

Pe rTP

. Does the program description clearly describe the State’s public notice/public hearing

process for permits to be issued?

Does this process include:

a. Formal public notice in newspaper

b. Is the newspaper circulated in the geographic area affected
c. Comment time period

d. Procedures for commenting

Does the submission describe the State’s procedures to appeal the permit?

4-21

FS



4, Maintain a vigorous enforcement program by taking timely and appropriate actions in accordance with
the CWA and State statutes and regulations. .

5. Maintain an adequate public file, accessible to EPA, at the appropriate regional or central office, for
each permittee. At a minimum, such files must include copies of:

a. Permit application;

b. Issued permit;

c. ‘Public notice and fact sheet;

d. Self monitoring data, including any groundwater data;
e, All inspection reports;

f. ‘All enforcement actions; and

g. Other pertinent information and correspondence.

6. Cooperate with EPA in the administration of Sludge Management Program in accordance with EPA
program policies and guidance.

7. Submit to the Regional Administrator the information described in section V of this Agreement and in
applicable portions of 40 CFR Part 501. Additionally, upon request by the Regicnal Administrator, the (State
Agency) shall submit specific information and allow continuing access to all documents necessary for evaluating
(State Agency) administration of the Sludge Management Program.

8. Provide assurance that it has procedures to enforce the conflict of interest Provisions contained in 40
CFR Part 501 and that these procedures are being followed.

9. Develop and issue sludge use and disposal general permits. After identi‘ying those users or disposers
appropriately regulated by a general permit, the State will collect sufficient sludge data to draft a general permit.
Each draft will be accompanied by a fact sheet and will be forwarded to: .

Water Management Division Director

U.S. EPA, Region __

(Address)

The Regional Water Management Division Director will have ___ days to review the draft permit and
respond to the State. EPA will provide to the State in writing any objections, the reasons for the objections, and

the actions necessary to eliminate the objections. The State has a right to a public hearing on the objection pursuant
to 40 CFR 501.14(b)(2).

B. EPA Responsibilities
1. EPA will provide technical support and assistance to the (State Agency) in the following areas:

a. Interpretations of regulations at 40 CFR Part 123 and 501, relating to Sludge Management
Programs

b. General technical assistance in processing permit applications.
2. EPA will ensure that the (State Agency) is kept fully informed and up-to-date concerning:
a. _ EPA contractor reports; EPA development documents; and regulations relating to sludge use and

disposal practices

54



Shea geowoariesy

EPA

United States Office Of Water October 1990
Environmental Protection (EN-336)

Agency F3S BIO 104

State Sludge Management
Program Guidance Manual

& Printed on Recycled Paper





State programs and help to fulfill the Congressional intent and
EPA policy to have sludge management remain primarily a matter of
State and local concern.

I hope that you will find this guidance useful in producing
approvable State programs. For further information concerning
this guidance, or for questions concerning State program
requirements, please contact Lynn Holloway of my staff at (202)
475-9520.



APPENDIX B

ORGANIZATIONAL CHARTS



| TABLE 3-2. TERMS WHICH SHOULD BE DEFINED IN STATE LEGAL AUTHORITIES

© Sewage sludge

© Treatment works treating domestic sewage
© Class I sludge management facility

© Sludge use and disposal standard

¢ Person

H © Septage

© Land application

© Dedicated land

e Reclaimed land

e Agricultural land

¢ Nonagricultural land
. Silvicultural land

© = Monofill

¢ Floodplain
© Base flood
¢ Surface impoundment

Distribution and marketing

3-12



14.

15.

16.

17.

19.

20.

Copies of all compliance inspection
reports, report forms, data, and
transmittal letters to Class I
permittees.

Copies of all compliance inspection
reports and data transmittal letters
to all other permittees. :

For Class I permittees, a semiannual
noncompliance report as specified
in 40 CFR 501.21(a).

For other permittees, an annual
report as specified in 40 CFR
501.21(b) which indicates

the status of the Sludge
Management Program, updates
the inventory of sludge generators
and disposal facilities, and reports
on incidents of noncompliance.

Copies of all enforcement actions
against permit violators (including
letters, notices of violation,
administrative orders, initial
determinations, and referrals to
the Attorney General).

Copies of correspondence pertaining
to administration of the Sludge
Management Program.

Copies of all notifications of
noncompliance required to be
reported pursuant to 40 CFR
501.21(a) and 501.14(b)(12)(iv).

Any other pertinent information
requested by EPA.

Frequency of Submission

Within 30 days of
inspection

As requested

Semiannually, as
specified in 40 CFR
501.21 (a)

Within __ days of the
end of the calendar year
as specified in 40 CFR
501.21(b)

As issued

As issued or received

Within ___ days of incident

As requested

EPA shall transmit the following information to the State:

A list of compliance inspections
EPA intends to conduct jointly with
the State.

Proposed revisions to the schedule
of compliance inspections.

Copies of all EPA compliance
inspection reports and data.

Annually

As needed

Within 30 days of
inspection |

.

5-13 , ; * G/



A ipt Ww it ications by the State 1c"

Within working days of the receipt of a complete permit application, the (State Agency) will enter all
required information into EPA's National Permit Compliance System (PCS) (when it becomes available to accept
the data).

B. it Reissuance

All expiring sludge permits shall be reissued on or before the date of expiration. If such timely reissuance
is not possible, the (State Agency) will notify the Regional Administrator of the reasons for the delay. In no event
will permits administratively continued beyond an expiration date be modified or revised.

Cc. view of Draft Permits and Permit Modifications

1, The (State Agency) shall consult with the Regional Administrator before issuing public notice of a draft
permit to ensure that the permit will comply with Federal guidelines and requirements. The (State Agency) shall
transmit appropriate portions of working documents to the Regional Administrator, in connection with the
consultation.

2. Unless otherwise waived, EPA will review all draft permits. EPA will always review all Class I
permits. At the time of issuance of the public notice, the (State Agency) shall send the EPA one copy of the public
notice, the draft permit, and the fact sheet (when prepared) for each facility. In the case of a Class I facility, the
permit application must also be submitted for review. .

EPA shall have up to 90 days to comment upon, object to, or make recommendations with respect to the
draft permit. The time for EPA review shall be extended up to 90 days upon request: of EPA. EPA will send to
the (State Agency) written agreement, comments, or objections to each draft permit, including a statement of the
reasons for the comments or objections and the sections of the CWA, regulations, or guidelines which support
them. A copy of all comments will also be sent to the permit applicant. In the event EPA files a "general

- objection” to a draft permit, it shall have 90 days from receipt of the draft permit to supply the specific grounds
for objection, and the terms and conditions which should be included in the permit. If the initial permit information
supplied by the (State Agency) is inadequate to determine whether the draft Permit meets the guidelines and

. Tequirements of the CWA, EPA may file an “interim objection” under 40 CFR 123.44(d) and request the (State

“ Agency) to transmit the complete record (or portion thereof) of the (State Agency) permit proceedings. The full
period for EPA review shall recommence upon receipt of the requested information. If the State issues a general
permit for sludge use or disposal, the Office of Water Enforcement and Permits may conduct the permit review
on the Region's behalf [40 CFR 501.14(b)(2) and by reference, 40 CFR 123.44(a)(2)].

3. In the event the Regional Administrator objects to a permit under paragraph C.2 above, the Regional
Administrator shall so notify the (State Agency) in writing as to the reasons for the objection and the actions
necessary to eliminate the objection. EPA's objections must be based on one or more of the criteria identified in
40 CFR 123.44(c). The (State Agency) has the right to a public hearing on the objection. If EPA's concems are
not satisfied within (90) days of the notice of objection (or within 30 days of the Regional Administrator's decision
following a public hearing on the objection), exclusive authority to issue the permit vests in EPA. No permit will
be issued over the written objection of EPA.

D. Waiver of Permit Review by EPA
1. At this time, EPA waives the right to comment on, or object to, the sufficiency of permit applications,
draft permits, proposed final permits, and final (issued) permits, with the exception of the categories described
below:
a. Class I Sludge Management facilities as defined in 40 CFR 501.2.

b. Sludge use and disposal practices which may affect another state.

5-8

So



TABLE 2-1, ELEMENTS OF STATE PROGRAM SUBMISSION

Governor’s Letter - a letter from the Governor of the State Tequesting program approval.
This letter need not provide any substantive information about the contents of the
submission. For program modification, the request may be submitted by the Director of
the State sludge management program agency instead of the Governor.

Program Description - a description of program Protocols and procedures including
organization, permitting, compliance monitoring, enforcement Procedures (including copies
of any forms to be used), and resources and funding. The requirements for a program
description are outlined in Chapter 4. .

Memorandum of Agreement (MOA) - a formal agreement between the State and EPA
spective program responsibilities of each agency. The contents of the
Chapter 5, including examples of a new MOA and a revised NPDES
MOA which addresses sludge.

of phases and activities in this Process that must be jointly undertaken by EPA and the State. Each
step is important to the successful approval of the State's proposed Program, although they may not
always occur in the order outlined (see Figure 2-1). Also, repeating some steps may be necessary in
order to develop a successful Program that will be operated in full compliance with the CWA.

Prior to assembling its Program submission, a State should review EPA’s regulations at 40 CFR
Parts 122, 123, 124, and 501, which detail the Program’s purposes, scope, and Tequirements. The
State should also monitor EPA’s progress in establishing technical standards for sludge use and

disposal (40 CFR Part 503), since each approved State will have to adopt these standards when
promulgated.

2-2

SE



41 PROGRAM SCOPE [40 CFR 123.22 and 501.12(a)]
The program description must clearly identify the Scope of the organizational structure
Supporting the program and the administrative procedures that implement it. This section describes

requirements for expanding the scope of the State NPDES program and defining the scope of a non-
NPDES State sludge management program.

4.1.1 NPDES Program Scope

If the State decides to incorporate sludge permitting requirements under its existing NPDES
program, this NPDES program must be revised to incorporate sewage sludge generation, treatment,
“use and disposal. The State’s NPDES program must be made applicable to owners or operators of
any treatment works treating domestic sewage, whether or not the treatment works is otherwise
required to obtain an NPDES permit. .

A State seeking approval of a sewage sludge management Program is required to have the
authority to regulate any person using or disposing of sewage sludge within the State (including
Federal facilities) through the six methods regulated under 40 CFR Part 503:

© Land application;

* Monofill (and co-disposal landfill);

¢ Distribution and marketing;

© Incineration;

e Surface disposal; and

¢ Any other sludge use and disposal practices that may be covered by Federal regulations

implementing CWA Section 405. :

The State need only have the legal authority to regulate the transportation and storage of sewage
sludge so that it can take action where necessary to protect public health and the environment.

If any of the practices covered by the 40 CFR Part 503 technical standards are not currently
being used in the State, the program description should indicate this. A State must have the
authority to regulate sewage sludge sent to a co-disposal landfill even though it is not required to
have a program to regulate the landfill itself. Due to the infeasibility of regulating sludge quality for

4-2

SE



Section IX. Incorporati nce

‘Whenever the State is required to adopt Federal standards or requirements, it may do so by reference.
Unless permissible under State law, the State will not prospectively incorporate regulations by reference. -

In witness whereof, the parties execute this agreement

FOR STATE AGENCY:

Director (ate)
State Agency

FOR UNITED STATES ENVIRONMENTAL PROTECTION AGENCY:

Regional Administrator, (ate)
Region



w

Procedures to compile all material to serve as compliance history and support for any
future actions

Tracking system to follow the progress of the enforcement action

Guidelines, including time frames, for escalating the enforcement action

Procedures to close out the enforcement action when compliance is achieved.

ND

B. Does the plan describe which violations will result in the following:

Warning notices

Administrative orders

Administrative penalties : .
Compliance schedules

Civil penalties

Criminal penalties

Termination of permit

NAWPwWN

C. Does the plan specify time frames to respond to violations and the personnel position and
responsibilities?

D. Does the plan specify time frames for permittee opportunity to respond?
E. Does the submission describe procedures for public notice of enforcement actions?

F. Does the plan provide procedures for reinstating terminated permits?

. INV) RY

A. Does the submission include an inventory of all municipal and nonmunicipal treatment works
subject to regulation?

B. Does this inventory include:

Name

Location

Ownership status (e.g., public, private or Federal)

Sludge use or disposal practices

Annual sludge production volume

Applicable permit number(s) (NPDES, UIC, RCRA, Clean Air Act, State)
Compliance status

NAWPEYN ES

C. Does the submission include an inventory of all other sludge disposal sites not included in
Item VI.B. above? (This list need not include sites which meet distribution and marketing
requirements.) .

D. Does this inventory include:

Name

Location

Permit number(s)
Source of sewage sludge

pene

4-23

V7



501.15(€)(2); see also EPA’s Guidance for the Use of NPDES General Permits, 1988]. Since 40

CFR 501 does not provide a separate general permit program approval, States approved under Part
501 may issue general permits. However, the intended general permits and the legal authority to
issue them must be discussed in the program submission (see Chapter 4).

‘mit Issuanc

* The Clean Water Act encourages public participation in the development of EPA programs. To
this end, EPA regulations contain a series of specific steps which must be taken prior to the issuance
of permits. These issuance procedures can be grouped together under the following headings: |

¢ Public notice and comment requirements;
e Permit appeals procedures; and

© Causes for modifying and terminating permits.

These procedures are highlighted in the subsections below.

Public Notice and Comment Requirements. In order for the public to have a meaningful role

in the sludge permitting program, EPA regulations at 40 CFR Part 124 and 501.15(d) require writers

«to prepare draft permits and a fact sheet or rationale explaining the draft. The draft permit is then
publicly noticed in a prescribed manner (e.g., a newspaper notice) for at least 30 days, during which
time the public is invited to submit comments. In the event that the comments reflect widespread
interest, the State may schedule a public meeting to discuss the permit. The time and place for this
meeting must also be publicly noticed at least 30 days in advance. After the comment period has
ended, the State finalizes the permit, taking "significant" (substantive) comments into consideration.

Permit Appeals. EPA has also set out a permit appeals system in its regulations. An

interested party must file an appeal request within 30 days of permit issuance. After 30 days, all
parties forfeit their right to appeal. The regulations also address the appeal process itself [see 40
CFR Part 124, Subpart E]. States are encouraged to adopt regulations which provide similar finality
to the permit appeals process.

Causes for Modifying and Terminating Permits. EPA has identified several good causes for

which it believes permit modification is justified; permits can only be revised under these

3-18

=



State Regulatory Authority
(citations)
¢ Description of the nature and purpose
of the hearing
© Written comments and/or request for ~
a public hearing may be submitted :
during the comment period

i. Response to significant comments at
time of permit issuance shall:

° Specify which provisions, if any of
the draft permit were changed in
final permit

* Describe and response to all significant
comments on draft permit

5. Permit Actions

a. Transfer permits — by modification to
identify new owner and incorporate
any other such requirements as may be
necessary to assure compliance with
the CWA by:

© Major modification
¢, Minor modification
¢ Revocation and reissuance
e Automatic transfer

b. Causes for modification or revocation
and reissuance

Alterations to the permitted facility
or activity
¢ New information received by the Director
© New regulations promulgated under CWA Section .
405(d) —
¢ Director determines that good cause
exists for modification of a compliance
schedule required under the permit
When required by a permit condition to
incorporate, revise, or add a land
application plan ee

¢. Causes for modification or revocation
and reissuance

e Inspection of facility or receipt of

required information ee

¢ Review of permit file —

« Permittee request ee
3-30



4. PROGRAM DESCRIPTION

The State sludge program application must describe the organization administering the
program, and detail procedures for implementing the sludge management program. According to
Federal regulations, the program description is required to contain the following nine components:

¢ Narrative description of program scope, structure, and implementation procedures;
e Organizational chart;

* Narrative description of organization and structure of responsible State agency or
agencies, including:

- Designation of lead agency
- Responsibilities of each agency
-  Interagency/intra-agency coordination procedures a

- ‘Description of participating State staff, including the number, occupations, and
general duties;

e Itemized estimate of resource requirements and program costs for the first two years;
e Estimate of sources and amounts of funding for the first two years;
¢ Inventory of all POTWs and other treatment works treating domestic sewage;
«Narrative description of applicable State program procedures for:

- Permitting

- Compliance tracking

- Enforcement; and
© Copies of permit application forms, permit forms, and reporting forms.
This chapter discusses how the State drafts its program description. It specifies the information
necessary to document the State’s organization, management, resources, and procedures for
permitting, compliance tracking, enforcement, and maintaining a sludge inventory. It addresses both
States pursuing approval under an existing NPDES program and States which do not have NPDES
programs. A checklist to guide States and EPA in determining the completeness and adequacy of the

program description appears at the end of the chapter.

SS



i A i
(citations)

~ d. Causes for termination or denial of a
permit application or permit renewal
include the following:

e Noncompliance by the permittee with any
condition of the permit

© Permittee’s failure in the application or
during the permit issuance process to
disclose fully, or any misrepresentation
of any material facts

e Determination that the permitted activity
endangers human health or the environment

e Changed conditions requiring reduction
or elimination of any permitted activity

D. Regulations applicable to specific sludge use
and/or disposal practices [40 CFR 501.1(d)(1)]
[40 CFR 122.1(b)(4) and (g)(7)]

1. Landfill -- monofill

2. Land application — agricultural land : ~
3. Land application - nonagricultural land

4. Distribution and marketing . 7

5. Incineration

6. Surface impoundments

7. Other

E. Optional program provisions [40 CFR 501.15(e)]

1. Continuation of expiring permits [40 CFR 122.6].
Expired permit continues in force until the
effective date of a new permit.

a. Expired permit remains fully effective
and enforceable

b. When permittee is not in compliance with
the conditions of the new or expired permit,
the State may do one of the following:

- Initiate enforcement action based on the
permit which has been continued
e Issue a notice of intent to deny the
- new permit
. Issue a new permit with appropriate
conditions
e Take other actions authorized by thé
Federal regulations

3-31



sludge program as part of its NPDES program should review the discussion on MOAs for a Part 501.
program contained in the following section.

5.2 MEMORANDUM OF AGREEMENT FOR A PART 501 PROGRAM

The MOA between the State and EPA, negotiated as part of a Part 501 sludge management
program, addresses the elements cited above. Each of these elements is described briefly in the
Subsections below.

5.2.1 Transfer Administration of Permits

-" The MOA must provide for the transfer of Program administration from the EPA Region to the
State. All pending permit applications and supporting data (e.g., sludge quality data), should be
transferred to the appropriate State agency(ies). If a State does not have the authority to enforce
EPA-issued permits, then it should agree to reissue them with identical provisions. Similarly, copies
of EPA’s permit files must also be transferred to the State.

5.2.2 Classes of Permits Which Must Be Reviewed by EPA

The MOA between a State and EPA must specify the classes and categories of proposed or
draft permits which the State will send to EPA for review. Under no circumstances may Class I
~’ sludge management facilities be exempted from review. In addition, the EPA Region should
probably review all general permits and other permits of concern (e.g., permits for agricultural land
application and/or incinerators). Further, the State must agree to forward copies of all final permits
to EPA, including applications and fact sheets.

5.2.3 Waiver of EPA Permit Review

Except for permits issued to Class I sludge management facilities, EPA may waive its right to
review, object to, or comment on State-issued permits. The extent of EPA’s waiver must be
specified in the MOA. Additionally, the MOA shall contain a statement that the EPA retains the
right to terminate the waiver as to future permit actions.

5.2.4 Reporting Requirements

The MOA between the State and EPA must specify the frequency and content of reports and
other information which the State will submit to EPA. In addition, the MOA should set out agreed

5-2

a . a oa =i a a a im _ ie



Section V. rting and Transmittal of Information

A. The (State Agency) will submit the following to EPA:

Item juency of Submission

1. A copy of all permit applications Within ___ days of receipt “
(except those for which EPA has
waived review).

2. Copies of all draft sludge use or When placed on public notice
disposal permits and permit
modifications, including fact
sheets (except those for which EPA
has waived review).

3. A copy of all public notices, As issued
(except those for which EPA has
waived review).

4. A copy of all proposed and modified As issued
sludge use or disposal permits.

5. A copy of all sludge permits issued to a As issued
Class I sludge management facility.

6. A copy of all other permits issued As needed
to a Class I sludge management
facility.

7. Accopy of all permit applications Upon request

and public notices for which EPA
has waived review.

8. A letter of transmittal which lists Monthly - by the Sth
permittee's name, facility, working day of each
location, date signed, effective month
date, and expiration date. .

9. A copy of settlements and decisions As issued
in permit appeals.

10. A list of Class I facilities Annually
scheduled for compliance
inspections, and a list of all
other facilities scheduled for
compliance inspections.

11. Proposed revisions to the As needed

scheduled compliance inspections.

12. A list of compliance inspections Quarterly
performed during the previous
quarter,



4, National Emissions Standards for Hazardous Air
Pollutants (NESHAPS) [40 CFR Part 61]

5. National Ambient Air Quality Standards (NAAQS)

[40 CFR Part 50}

New Source Review Standards [40 CFR Part 51.18]

Prevention of Significant Deterioration (PSD)

(40 CFR Part 52.21] _

mo

E. Definitions related to distribution and marketing

1, Annual production application rate
2. Distribution
3. Sludge product

Requirements for Permitting

A. Contents of a permit application [40 CFR 501.15(a)(2)]

[40 CFR 122.21(4)G)(i)]

1. Operator’s name, address, telephone number,

ownership status

Located on Indian Lands?

Numbers of all environmental permits held

Activities conducted by applicant

Description of sludge use and disposal practices

Annual sludge production volume

Topographic map extending one mile from property

boundaries and depicting location of sludge

management facilities, water bodies and wells

within 1/4 mile of property boundaries

8. Any sludge monitoring data, including ground
water data

9. Location of site(s) for sludge treatment or
disposal

10. Name of person or entity land-applying sludge,

_ if applicable

11. Land application site plan

12. Any information required to determine the
appropriate permitting under 40 CFR Part 503

13. Any other information the Program Director
may request

14. Signature by responsible officer

15. Certification of data accuracy

RAWAWN

B. Standard permit conditions, applicable to all

permits [40 CFR 501.15(b)] [40 CFR 122.41]

3-25

Lat Authorit
(citations)

NAMI TINT MU

\

X



a
= NE UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
2 a WASHINGTON, D.C. 20460
"At prose
DEC 20 1990
OFFICE OF
MEMORANDUM . WATER

SUBJECT: Sludge Program Gui

FROM: James R.
office

oe Birector
Water Enforcement and Permits

TO: Userd of the State Sludge Management Program Guidance

In the 1987 Amendments to Section 405 of the Clean Water Act
(CWA), Congress determined that standards for sludge use and
disposal should be implemented through permits issued either by
EPA or by a State under an approved program. Accordingly, EPA
promulgated regulations on May 2, 1989 which establish
requirements for developing sludge permit conditions in NPDES
permits (40 CFR Parts 122 and 124) and for approval of State
sludge management programs that are administered either through
NPDES programs (40 CFR Part 123) or through non-NPDES programs
(40 CFR Part 501). The State Sludge Management Program Guidance
is designed to assist State personnel in the development of State
sludge Management programs that meet the requirements of the
May 2, 1989 regulation. It will also assist EPA Regional and
Headquarters personnel in the evaluation of those submissions.

The guidance manual is divided into the following chapters:
(1) Introduction; (2) Procedures for State Program Approval,
Modification, and Withdrawal; (3) Legal Authority; (4) Program
Description; and (5) Memorandum of Agreement. Checklists and
model documents are included to facilitate the development of an
approvable program. The Statutory and Regulatory Requirements
checklist follows Chapter 37 the Program Description checklist
follows Chapter 4; and the model Memoranda of Agreement follow
Chapter 5. The model Attorney General's Statement and
organizational charts are presented in appendices. This manual
closely follows the State program regulations and should be used
in conjunction with them. It also encourages state/Regional
interaction in both program development and. evaluation.

EPA encourages States to begin developing program
submissions as soon as possible so that approved State sludge
programs can be in place when technical standards for sludge use
and disposal are promulgated. (Technical standards are currently
scheduled for promulgation in late 1991 or early 1992.) Early
program approval will also minimize the disruption of existing

/ Printed on Recycled Paper



VI. 5 Other Mi: neo! iti

State law provides the Department with the authority to provide the public with access to information on
sludge practices throughout the State and on the compliance status of individual persons. State law also requires
that Department personnel be free from conflicts of interest with permit holders or applicants. The sections below
discuss this authority in detail.

A ithorit lblic Access to Information

State law provides the authority to grant public access to sludge use and disposal information to the extent
required by EPA in 40 CFR 123.25(a)(3) and 40 CFR 122.7 for 40 CFR 501.15(a)(1)] to gain program approval.

State Statutory and Regulatory Authority and Case Law:

Remarks of the Attomey General:

B. ity Prohibiting Conflict of Interest

State law prohibits Department personnel from having any conflict of interest with permittees or applicants
as required by EPA in 40 CFR 123.25(c) [or 40 CFR 501.15(f)] to gain program approval.

State Statutory and Regulatory Authority and Case Law:

Remarks of the Attorney General:

vo. Jegation 1 Ager te 1

State law provides for the delegation of program responsibilities by a State agency to a local agency provided
that the conditions required by EPA in 40 CFR 501.1(l) are met.

VOI. Certification of Effectiveness of the Law and Regulations

I, the undersigned, certify that all of the laws and regulations discussed in Sections (_) of this document have
been duly adopted according to the legislative and rulemaking procedures prescribed under State law, and that these
laws and regulations are now effective and enforceable or will be as of the date of program approval.

A8

JOS



At a minimum, the initial inventory in the program submission should include all facilities
that are or will be required to obtain a permit (ie., all publicly and privately owned treatment
works, and Federal facilities treating sewage sludge). It should also include sewage sludge
commercial distributors which the State plans to permit. Industrial treatment works treating domestic
sewage will not be regulated under Phase I of 40 CFR Part 503. If these facilities become subject to
regulation under subsequent rulemakings, then the State’s program and inventory will have to be

expanded to cover these facilities.

Additionally, the inventory must include all sewage sludge use and disposal sites, including
the name, location, and permit number (if any) for each site. An inventory of the beneficial use sites
that receive sludge through a distribution and marketing program (i.e., home gardens) is not
required. If the State does not choose to submit this additional inventory of use and disposal sites
with the rest of the program application, the description should indicate how the State will complete
the inventory within five years of program approval.

As part of the compliance monitoring program, each State is required to update and maintain
the inventory. Updating is required to add new or changed facilities and sites that could require a

new or modified permit. Procedures for updating the inventory may include:
° Requiring existing facilities and sites to report any substantive changes as a permit
condition;
e Reliance on inspections to verify reported changes and identify unreported ones;

° Arrangements with cities and counties to be notified of any new facilities or sites locating
within their jurisdictions; or

e Arrangements with nonparticipatory State agencies for notification of facilities or sites
coming to their attention during the course of business.

The program description must describe how each agency will accomplish this task. For
example, the State can require all newly identified or substantially changed facilities to submit a
revised permit application. :

4-14

GS





C. Authori egulate Sewage Sludge Use and Disposal Practices

State law authorizes the regulation of sewage sludge use and disposal, as required by 40 CFR 122.1(b)(4)
[or 40 CER 501.1(d)(1)(ii)] to gain program approval.

State Statutory and Regulato: uthorit id Case Law:

Remarks of the Attorney General:

D. Emergency Response Authority

State law authorizes such action as may be neéessary to abate any situation which presents, or could
potentially present, an imminent danger to public health or the environment, as required by 40 CFR 123.27(a)(1) |
and (2) [or 40 CFR 501.1(c)(4) and 40 CFR 501.17(a)(1)] to gain program approval.

State Statutory and Regulatory Authority and Case Law:

Remarks of the Attomey General:

I. The De ent’s Authori ue Man: ent Permits

State law provides the Department with the authority to issue and enforce permits for the use and disposal

of sewage sludge. The sections below discuss this authority in detail.

A-3



the permittee is also required to provide copies of all records which must be kept pursuant to its
permit, including monitoring reports, to the State Director.

hori Modif: voke, and Rei Termina: its for Cau:

State law must also give the agency the authority to modify, revoke and reissue, or terminate a.
permit for cause (see Table 3-5 for the causes for permit modification). Causes for modification or
revocation and reissuance include situations where cause for termination exists but the Director
determines modification or revocation and reissuance is more appropriate. Causes for termination of
a permit include:

© Permittee’s noncompliance with any permit condition;
© Permittee’s misrepresentation of, or failure to disclose, relevant information;

¢ Determination that the permitted activity endangers public health and the environment, and
that the best way to bring this activity to acceptable levels is to modify or terminate the
permit; and , :

© Change in any condition which requires either a temporary or permanent reduction or
elimination of the permitted activity.

Authority to Provide Public Access to Information

All programs administered under the CWA are required to involve the public to the maximum
extent possible. Consequently, an approvable sludge management program must ensure that the

following information is accessible to the public:*

« Name and address of permittees;

e Permit applications (with attachments);

« Permits (with attachments); and

Effluent data and sludge quality and disposal information.

The State must allow EPA access to any information, including confidential information.

“"Access” does not mean that the State may not charge a reasonable fee for photocopying and
mailing such information to interested persons. .

3-8

ZS
eoroc'n'nrow


Many States that have not sought program approval have existing sludge Programs which are not
as broad in scope as the Federal Program. For example, EPA has defined sewage sludge to include -
specific materials (see Table 3-1). If a State Statute defines sludge in a narrower manner (@g.,
septage is excluded from the State’s current definition of Sewage sludge), this definition will need to *
be amended to be consistent with the Federal definition. It is not necessary for a single State agency
to have responsibility for all methods of sludge use and disposal. However, the authority of all
interested State agencies combined must be as broad in scope as EPA’s Program, and each agency
must be represented in the State’s submission.

TABLE 3-1. FEDERAL DEFINITION OF SEWAGE SLUDGE

SEWAGE SLUDGE IS DEFINED AS:

Any solid, semi-solid, or liquid residue removed during the treatment of tounicipal wastewater or
domestic sewage, including:

¢ Solids removed during primary, secondary, or advanced wastewater treatment
e Scum

° Septage

¢ Pumping from portable toilets

© Pumping from Class III marine sanitation devices

© Sewage sludge products

| SEWAGE SLUDGE DOES NOT INCLUDE:
© Grit and screenings
¢ Incinerator ash

¢  Septage or portable toilet pumping discharged to POTWs



C. Authority to Seek Injunctive Relief

State law provides the authority to seek both temporary and permanent injunctive relief, as required by EPA
in 40 CFR 123.27(a)(1) and (2) [or 40 CFR 501.17(a)(1) and (2)] to gain program approval.

State Statuto d Regulatory Authorit Case Law:

Remarks of the Attorney General: - .

D. Authority to Seek Civil Penalties *

State law provides the authority to seek civil penalties in the amount of $5,000 per. day for each violation,
as required by EPA in 40 CFR 123.27(a)(3)(i)( [or 40 CFR 501.1(c)(5) and 40 CFR 501.17(a)(3)(i)] to gain
program approval.

State Statutory and Regu latory Authority and Case Law:

Remarks of the Attorney General:

E. Authority to Seek Criminal Penalties

State law provides the authority to seek criminal penalties in the amount of $10,000 per day for each
violation as required by EPA in 40 CFR 123.27(a)(3)(ii - iii) {or 40 CFR 501. 1(c)(5) and 40 CFR 501.17(a)(3)(ii)]

to gain program approval.

State Statutory and Regulatory Authority and Case Law:

Remarks of the Attorney General:



The monitoring frequency will be determined on a permit-by-permit basis after considering the
nature of the permittee’s sludge quality; use and disposal methods; and the State agency’s need to
know. Monitoring shall occur at least once per year [see 40 CFR 501.15(b)(10)(i), and EPA’s
Sewage Sludge Interim Permitting Strategy, September 1989]. Unless a State agency designs a self- .
monitoring reporting form for the treatment works to use, the permittee should attach its sludge
monitoring data to an NPDES Discharge Monitoring Report (DMR). The State must require the
permittee to prepare and retain records of its monitoring activities for at least five years [see 40 CFR
122.41@)(3) and 501.15(b)(10)(iii) for a complete description of these records]. The technical
standards to be promulgated at 40 CFR Part 503 may establish minimum monitoring frequencies and

record retention periods.

Standard Conditions

EPA regulations expressly require a number of standard conditions to be placed in all treatment
works permits (see Table 3-4). These provisions establish automatic notification requirements and
impose additional duties and obligations on the permittee (e.g., the responsibility of notifying the
Director of planned changes in the facility, anticipated noncompliance, and incidents of other:
noncompliance). A State agency’s regulations should indicate that every State permit will include
these conditions as well as any other standard conditions deemed necessary by the State agency.

if ition: r
Even after EPA’s sludge use and disposal standards are promulgated, they will not address all
pollutants of potential concern or all possible sludge use and disposal methods. Consequently, EPA
and State personnel will continue to rely on best professional judgment or case-by-case permitting for
those methods and/or pollutants not covered. Therefore, State regulations must provide the State
agency with the flexibility to impose such conditions as may be necessary to protect public health and

the environment.

Permi So
EPA regulations allow a single permit to cover a category of treatment works employing the
same sludge use and disposal method (e.g., all treatment works involved in silviculture). These
“general permits” reduce potential administrative burdens on the State agency without compromising
the quality or enforceability of the permit program. If a State is interested in using general permits,
it must include similar issuance procedures as in Federal regulations [see 40 CFR 122.28 and

3-16

. SG
ooo



Lead Agency

Section 501.12(6) of 40 CFR stipulates that if more than one State agency is to be involved in
the sludge management program, a lead agency must be designated which will be responsible for
overall program coordination as well as for coordination between the State and EPA. Though not
required, identifying a central coordinator within the lead agency is recommended. Central
coordination is necessary to convey information on activities throughout the State’s program in the
Most expeditious manner possible. The time demands for program coordination should not be
underestimated.

Delegation to Local Agencies

EPA encourages States to use existing sludge management programs to the extent practicable.
Therefore, 40 CFR 501.12(15)(f) allows a State sludge management agency to assign portions of its
Program functions to a local agency, as long as that agency does not own or operate a POTW or
other facility subject to the sewage sludge regulations. A State agency intending to use this approach
must identify which responsibilities will be delegated to the local agency and must demonstrate the
agency’s capabilities to carry out the assigned functions. Documents which assign functions and
specify the respective State/local sludge Management responsibilities must be submitted with the
program description.

Any assignment of program responsibilities to a local agency must be certified in the Attorney
General's Statement as being valid under both State and local law. The MOA. must provide for
adequate State agency oversight of implementation by the local agency. Under 40 CFR 501.1(1), the
State sludge management agency remains responsible for all reports required to be submitted to EPA.
Finally, the State sludge management agency must retain full authority and ultimate responsibility for
administering all aspects of the State’s approved program.

4.3 RESOURCES [40 CFR 123.22 and 501.12(b)]

The program submission must demonstrate that the State possesses adequate resources
(including sufficient funding) and qualified personnel to operate the described program.



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— E. If the submission does not include comprehensive inventories, does it include the information
required under Item VI.B.1 and 2 above?

F. If the submission provides only this partial inventory, does it include a detailed plan for
completing the inventory within five years?

— G. Does the submission describe in detail the procedures to develop and maintain an inventory?

a

4-24



In addition to authorizing the State agency to enter and inspect sludge facilities, the State must
be able to require persons using or disposing of sewage sludge to monitor and report on their
compliance. The authority to compel this information is an important tool in program
implementation and enforcement.

thority to Enforce Slud itand: nd Requirement

The Clean Water Act and EPA regulations establish minimum enforcement measures which a
State must be able to take. For violations of State Program requirements, the State must have the
authority to:

© Seek injunctive relief [40 CFR 501.17(a)(2)};
¢ Seek civil penalties of at least $5,000 per day per violation [40 CFR 501.17(a)(3)(i)];

© Seek criminal fines of $5,000 for knowingly making a false statement, or for falsification of
information, or for tampering with a monitoring device [40 CFR 501.17(a)(3)(ii)]; and

* Seek criminal penalties of at least $10,000 per day per violation for other instances of
noncompliance [40 CFR 501.17(a)(3)(ii)].

A State must be able to seek injunctive relief to compel compliance or to immediately restrain
any person from engaging in activities which violate sludge use and disposal standards, whether or
not that person has a permit. Additionally, a State must have the authority to seek the civil and
criminal penalties listed above.

3.2 REGULATORY AUTHORITY
3.2.1 Introduction

This section addresses the specific requirements which must appear in the State agency’s
regulations in order to be at least as stringent as the Federal program administered by EPA. A
regulation checklist appears at the end of this chapter.

3.2.2, Regulatory Authority for a Program Under NPDES

States which choose to implement a sludge management Program in conjunction with an existing
NPDES program probably have much of the regulatory framework required by Federal regulations.

3-10

7



4, Tf the State does not have the legal authority to implement one or more provision(s) in the permit originally
issued by EPA, EPA may nevertheless dissolve that permit and allow the State to issue one containing those
provisions which it does have the authority to administer. [Alternatively, EPA may retain control over the
implementation of that permit.] :

5. Tf a sludge user or disposer is required to get a permit from both EPA and the State under different
Programs, the State and EPA may consolidate processing of permits under written procedures which ensure
adequate notice to all affected permittees. The State and EPA may coordinate the expiration dates of new and
existing permits so that processing of renewal applications may be consolidated.

ect . Review and Waiver

lL The Program Director will forward copies of the permit applications, draft or Proposed permits, and fact
sheets of all Class I facilities for review comment and objection. Such review may not be waived by EPA.

2. For all other permit applications, the State Program Director shall forward copies of permit applications,
draft or proposed permits, and fact sheets unless such review is waived by EPA.

3. When the State issues a general permit for sludge use or disposal, the review required by 40 CFR
123.44(a)(2) for NPDES general permits by the Office of Water Enforcement and Permits will not apply. General
permits should be forwarded to:

Water Management Division Director,
U.S. EPA, Region
(address)

4. EPA specifically waives its right to review, object to, or comment on the State issued permits listed below:

a.
b.
c.
5. The Regional Administrator reserves the right to terminate any waiver with respect to further permit

actions listed in Section ITI.4 above. Such termination, which may be in whole or in part, is effective upon written
notification to the State Director.

Section IV._Reporting Requirements

1 The State Program Director will submit a semiannual sludge violation report containing information on
incidents of noncompliance occurring within the previous six months by Class I sludge management facilities. The
semiannual report will include, but not be limited to, the following:

a. — significant failure to comply with minimum Federal requirements for sludge use and disposal practices;

b. significant failure to comply with permit conditions; -

c. failure to complete construction of essential elements of a sludge managennent facility or to meet key
milestone dates specified in the permit;

d, failure to provide compliance monitoring reports or submission of reports si deficient that they impede
review of compliance status;

¢. — significant noncompliance with other program requirements.

2. The semiannual report will retain the name and reference number of a noncomplying facility, the type of
noncompliance, including a description and date of the occurrence, the date and type of action taken to ensure
compliance, and status of incident(s) of noncompliance, with dates of resolution and any mitigating circumstances.



EPA intends to propose regulations which will authorize States to submit a partial sludge
management program. States may choose to submit a partial sludge management program, for
example, where a State agency has responsibility for fully regulating a particular use or disposal
practice. The program may be administered as part of an existing program, e.g., the State’s solid
waste program. This approach gives the States maximum flexibility in adapting Federal sludge
requirements to existing State programs.

A State submission for a partial program must clearly identify which aspects of the program it
plans to assume. The State should explain why it is unable to assume a full program. A partial
State sludge program will be allowed only where a State agency has a complete permit program,
including permit development, issuance, compliance monitoring, and enforcement responsibilities.
This permit program must cover all facilities using the particular sludge use or disposal practice that
falls within the jurisdiction of the State agency or department. All users and disposers under a

particular practice would be subject to the partial program, even if not required to obtain a permit.

EPA will provide additional guidance on partial sludge programs once the regulations have been
finalized. Until that time, EPA will assist States interested in partial programs on a case by case
basis.

1.4 SUPPLEMENTAL SOURCES OF INFORMATION

The State can obtain additional information on EPA’s sludge management program from the
following documents:

. idance for Writing Case-by-Case Permit Requiremen Municipal Sew: ludge,
Office of Water, May 1990
« Sewage Sludge Interim Permitting Strategy, Office of Water, September 1989

e Summary of Environmental Profiles and Hazard Indices for Constituents of Municipal
Sludge, July 1985

¢ Guidance on Sampling and Analysis of Municipal Sewage Sludge, Office of Water, August
1989

e Final Permitting and State Program Regulations, May 2, 1989, 54 FR 18716

Criteria for Classification of Sewage Sludge Disposal Facilities, September 13, 1979, 44 FR
53460 .

© Proposed Standards for the Disposal of Sewage Sludge, February 6, 1989, 54 FR 5746

1-5

J//



5. MEMORANDUM OF AGREEMENT

EPA’s approval of a State sludge management program is signified by the MOA negotiated and
executed by the State Director(s) and the EPA Regional Administrator. A State seeking approval of
a sludge management program under either 40 Part 123 or 501 must execute an MOA. The requisite
elements of the MOA are set forth at 40 CFR 123.24 and 501.14. The MOA establishes the

: following:

¢ Transfers the administration of existing EPA permits and pending permit applications to the
State;

* Indicates classes of permits which must be reviewed by EPA;

¢ Details the extent to which EPA will waive its right to review, object to, or comment upon
State issued permits;

© Describes the frequency and content of reports required to be submitted to EPA;

* Outlines the coordination of compliance monitoring and enforcement activities between the
State and EPA;

* Specifies when permits will be jointly processed by EPA and the State; and

* Details when the MOA must be modified.

The MOA, the Annual 106 Work Plan, and the State/EPA agreement should be consistent.
Detailed program priorities and specific arrangements will change and .are more appropriately
negotiated in the context of the annual State/EPA agreement rather than in the MOA. However, it is
still appropriate for the MOA to specify the basis for detailed requirements, such as a provision
specifying how to determine which facilities will be inspected as part of the annual State/EPA
agreement. An example MOA and examples of amendments to existing MOAs appear at the end of
this chapter. s

5.1 MEMORANDUM OF AGREEMENT FOR A NPDES PROGRAM

The MOA between the State and EPA submitted as part of.a NPDES sludge program will
consist of an addendum to the original NPDES MOA. This addendum must contain terms and
conditions concerning the State’s sludge management program. Any State wishing to implement a

rs

7



b. Settlement agreements between EPA and litigants which concern the interpretation or modification
of regulations related to sludge use and disposal practices

c. EPA regulations, technical guidance, policies, and procedures which pertain to implementation
of the Sludge Management Program.

3. EPA will provide the (State Agency) with the opportunity for meaningful involvement in program
development activities and program initiatives. EPA will keep the (State Agency) informed of development of
Sludge Management Program policy statements, strategies, and related guidance, and provide for input by the (State
Agency) when appropriate.

4. EPA will oversee the administration of the State Sludge Management Program on a continuous basis
for consistency with the CWA, this Agreement, the annual program plan (if any), and all applicable Federal
regulations and policies. As a part of its assessment, EPA will review permits, reports, and enforcement actions
submitted by the (State Agency). EPA may also consider comments from permittees, the public, and Federal and
local agencies concerning the (State Agency's) administration of its Sludge Management Program. Any such
comments considered by EPA will be brought to the attention of the (State Agency) by written correspondence.
(If the commenting party has not previously communicated this comment to the (State Agency). Any information
obtained or used by the (State Agency) under the Sludge Management Program shall be available to EPA upon
request, without restriction. If the information has been submitted to the (State Agency) under a claim of
confidentiality, the (State Agency) shall inform EPA of that claim. Claims of confidentiality will be treated in
accordance with 40 CFR Part 2, Subpart B; and 40 CFR 501.15(a)(1).

5. Upon approval of the MOA, EPA will promptly deliver to the State Program Director all pending
permit applications on which no final action has been taken. Other information pertinent to program operation such *
as support files, monitoring reports, and any previously issued permits should be transferred to the State Program
Director along with permit applications.. EPA shall deliver the above information within __ days of approval of
this MOA. This information shall be addressed to:

State Program Director
(address)

6. Sludge permits currently in effect shall remain in effect after approval of a State Sludge Management
Program. EPA shall transfer duties of permit administration to the State Director within ____ days of approval
of this MOA. All information in EPA’s possession which is pertinent to program operation should accompany
those permits to the State Director at the address listed above.

7. If the State lacks the authority to administer Federally issued permits, the State will issue a permit with
provisions identical to the EPA-issued permit currently in effect, which will be simultaneously dissolved.

8. If the: State does not have the legal authority to implement provisions in the permit originally issued
by EPA, EPA may nevertheless dissolve that permit and allow the State to issue one containing provisions has
authority to administer. Alternatively, EPA may object to the State’s administration of a permit it does not have
full authority to administer, and may retain control over the implementation of that permit.

9. A permit applicant or permittee shall be given days notice of any prospective transfer of
administrative program duties from EPA to the State Program Director.

Section

and Issu

The (State Agency) is responsible for expeditiously drafting, providing public notice for, issuing, modifying,
reissuing, and terminating permits in accordance with 40 CFR Part 501 and any other applicable regulations.

5-7 s



1. ORGANIZATION AND USE OF THIS MANUAL

1.1 PURPOSES OF THIS MANUAL

This manual has two purposes. First, it provides guidance to State personnel for assembling a
State sludge program application. Second, it specifies the procedures by which the US.
Environmental Protection Agency (EPA) will evaluate the State sludge program application. The
* manual is intended to provide guidance to both State and Federal personnel who are either preparing
or evaluating the State sludge program application.

The manual describes requirements for a State program under the two options specified in the
Federal regulations:

* Under 40 Code of Federal Regulations (CFR) Part 123, if the State decides to modify its
National Pollutant Discharge Elimination’System (NPDES) program to add sludge permitting
requirements; or .

e Under 40 CFR Part 501, if the State decides to administer a non-NPDES program.

Each chapter of this manual discusses State sludge program requirements both for NPDES program
revisions and for non-NPDES programs. The requirements for either type of program are essentially.
the same. This manual also contains checklists on legal authority and program requirements. These
checklists will assist State personnel in developing complete and approvable programs, and will also
assist EPA staff in evaluating program submissions by facilitating a comparison of the State’s
program with EPA’s requirements. The manual also includes sample Memoranda of Agreement
(MOA), an Attorney General’s statement, and an organizational chart which States can modify to
reflect their own sludge programs.

‘The surest way to prepare a successful program submission and to minimize time-consuming
difficulties later in the process is for State personnel to work closely with EPA Regional and
Headquarters staff, who can assist and speed the State’s efforts. ‘The State should establish
communication with its EPA Region early in the process so that Agency staff can comment on

proposed regulations and draft program documents to ensure their approvability.



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MODEL

STATE SLUDGE MANAGEMENT PROGRAM
UNDER 40 CFR PART 501

MEMORANDUM OF AGREEMENT
BETWEEN THE
STATE AGENCY
AND THE
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION _

ect _ Ger

This Memorandum of Agreement (hereafter "Agreement" or "MOA") establishes policies, responsibilities
and procedures pursuant to 40 CFR Part 501 and defines the manner in which the (State) Sludge Management
Program will be administered.

The (State Director) and the Regional Administrator hereby agree to maintain a high level of cooperation
and coordination in a partnership to assure successful and effective administration of the Sludge Management
Program. If requested by either party, meetings between the State and EPA will be scheduled at reasonable

intervals to review specific operating procedures, resolve problems, or discuss the administration of the State’s
permit program.

In this partnership, EPA will provide to the (State Agency), on a continuing basis, technical and other
assistance on permit matters as requested. The (State Agency) has primary responsibility for implementing the
Sludge Management Program in accordance with Section 405 of the Federal Clean Water Act (CWA), 33 U.S.C.
§1251 et. seq. (hereafter CWA), applicable State legal authority, the requirements of 40 CFR Part 501, and any
other applicable Federal regulations.

The strategies and priorities for issuance, compliance monitoring, and enforcement of permits, as established
in this MOA, may be set forth in more detail in the annual State 106 program plan and the State/EPA Enforcement
Agreement signed by the (State Agency) and the Regional Administrator of EPA Region __. This MOA, the
State 106 program plan, the State/EPA Enforcement Agreement, and any other State/EPA agreement(s) should be
consistent as required by 40 CFR §501.14.

The State and EPA will negotiate priorities for implementation of a Sludge Management Program and
inspection of POTWs and other sludge users and disposers. The program must contain a list of permits to be
issued and facilities to be inspected. The State’s noncompliance with any térm contained herein is grounds for
withdrawal of EPA approval of the Sludge Management Program.

A. (State Agency) Responsibilities
In accordance with the priorities and procedures established in this Agreement, the (State Agency) will:
1. | Develop and maintain the legal authority (including State regulations) and the resources required to
carry out all aspects of the State Sludge Management Program, including development of procedures to ensure
adoption of up-to-date EPA regulations. The State agrees to incorporate the requirements of 40 CFR Part 503
within days of their promulgation.

2. Process, issue, reissue, or modify all sludge permits in a timely manner.

3. | Comprehensively evaluate and assess compliance with schedules, limitations, and other conditions in
permits.

5-5

3?



IX. Certification of the Signatory

I, the undersigned, certify that I hold the position of ( ) in the State and, as such, hold sufficient authority
to act on behalf of the Attorney General’ for purposes of executing this statement.

X. Summary

It is my considered opinion that the statutes and regulations of the State provide the Department(s) with
adequate authority to administer a State Sewage Sludge Management Program which is at least as stringent as the
program administered by EPA; that all of the State statutes and regulations cited herein are fully effective and
enforceable (or will be by the time of program approval); that there are no judicial precedents which substantially
restrict the Department’s(s") exercise of this authority; and that this authority is sufficient to receive program ~
approval from EPA.

CERTIFIED on this day of ,19__, in the City of , State
* of e
- : BY:
(Name)

(Title) .

Ao _ a



AMENDMENT

TO THE
(STATE) SEWAGE SLUDGE MANAGEMENT PROGRAM
MEMORANDUM OF AGREEMENT
BETWEEN
(STATE AGENCY)
AND THE
UNITED STATE ENVIRONMENTAL PROTECTION AGENCY. » REGION __

Secti . General

The Memorandum of Agreement (MOA) between the (State Agency) and the Administrator of the United
States Environmental Protection Agency (hereafter EPA), approved on ___, is hereby modified to
define (State Agency) and EPA responsibilities for the establishment, implementation, and enforcement of the
(State) Sludge Management Program, approved pursuant to section 405 of the Clean Water Act, as follows.

The (State Agency) has Primary responsibility for enforcement against sludge use and disposal methods
contrary to Federal and state regulations or permit conditions.

The (State Agency) shall perform inspection, surveillance and monitoring activities which will determine,
independent of information supplied by the POTW, compliance or noncompliance by the POTW with sludge use
and disposal requirements incorporated into the POTW permit. .

FOR STATE AGENCY:

“State Director Wate)
State Agency

FOR UNITED STATES ENVIRONMENTAL PROTECTION AGENCY:

Regional Administrator, (ate)
Region



reasonable estimate of the time necessary to perform each function and the number of times the
function will be performed. For example, if the State estimates that permits for 40 Class I sludge
management facilities will be issued in the next two years and that the State will need three workdays

to develop sludge conditions for each, then estimated workload for this activity is 120 workdays or
0.55 work-years.

The State should break down itemized costs by agency and include the following:

¢ Personnel

- Administrative personnel
- Technical personnel (e.g., for inspections and sampling)
- Clerical personnel; and

e Equipment.

Once the State has determined its estimated resource requirements, it should compile a list of
personnel and equipment currently available to each agency to fulfill its requirements. These
available resources should be listed in the Program description. The description should also clearly
identify any staffing or other resource shortfalls and explain how they will be handled without
impairing program performance.

i in;
The program description must estimate the expected available funding for the program and the

source(s) for this funding [40 CFR 501.12(6)(3)]. The description should also discuss how each
agency will obtain budget approval for its requisite resources, .

4.4 PERMITTING [40 CFR 123.25 and $01.15]

Specific Federal sludge permitting requirements are presented in detail in 40 CFR 123.25 and
501.15, which incorporate the permit provisions of 40 CFR Part 122 by reference. The State’s rules
and regulations must define State permitting requirements (see Chapter 3). However, as required by
40 CFR 123.21(c) and 501.12(c), the program submission must describe permitting procedures.
Aspects to be considered in the State’s permitting procedures are outlined in the checklist at the end

of this chapter.



For example, a State agency regulating land application would be able to apply for program
approval based on that practice alone. The partial program would be required to cover all permittees

using land application, as well as ultimate users and disposers (even if they are not required to have
a permit). Alternatively, a State agency with jurisdiction over all sludge use and disposal practices in
the State except for incineration would be able to submit a Program based on all sludge use and

disposal practices except incineration.

The sludge management activities or facilities not covered by the partial program will be
administered by EPA. This division of authority should not lead to conflicting obligations for -
permittees; for example, requiring them to obtain sludge permits from both EPA and the State. The
Program should make it clear whether the permit issuing authority is the. State or EPA.

4.2 PROGRAM ORGANIZATION AND ADMINISTRATIVE STRUCTURE [40 CFR 123.22

and 501.12(b)]

The program submission must describe the organization of the agency or agencies responsible
for administering the State’s sludge Management program. This description must identify, all State
agencies that will have any responsibilities in the Program by name, detail these responsibilities, and
outline interagency and/or intra-agency coordination. In addition, the application should identify and
indicate the scope and function of any advisory body which exerts influence or contributes to policy
development or decision making on sludge use and disposal. Also, any other State offices that play a
role in the administration of this program, such as the Attorney General’s office and wildlife or
coastal zone management offices, should be identified.

This narrative description must be accompanied by one organization chart for each agency
implementing the State’s program. If multiple State agencies are involved, an overall organizational
chart which clearly shows the position of each agency in the State governmental hierarchy is
necessary. The State needs to clearly describe which offices within the agenvy(ies) are responsible
for administering different aspects of the program. For example, if the State agency has a permits
section and a compliance section, the Program submission should indicate the responsibilities of each
in administering the program. Any assignment of program responsibilities to local agencies and the
corresponding State oversight must be described. Example organizational charts appear in -

Appendix B. . ee £





if Authorit
(citations)
d. Notification sent to the following:

Applicant .
Any other agency (including EPA) which
must issue a permit (RCRA, UIC, PSD,
NPDES, MPRDS, or 404) for the same
facility or activity’

* Any State agency responsible for plan
development

© State or local governmental entity with
jurisdiction over the proposed location
of the facility

* Any person who requests a copy

e. Methods of notice:

© Class I permits and permits that require
land application plans newspaper publication
¢ Ina manner constituting legal notice to
the public under State law
e Any other method

f. Contents of notice

« Name and address of the office
processing the permit

* Name and address of the applicant

e Brief description of the activity .
described in the permit application

e Name, address, and telephone number
for further information

© Description of comment procedures,
including method to request public
hearing (if not scheduled in advance)

© Statement that no permit will be issued
over the objection of EPA

g. Hearings
e Public hearing shall be held whenever

a significant degree of public
» interest exists

TTT

h. Public notices for hearings shall
. include the following:

© Date of previous public notices
relating to the permit
© Date, time, and place of the hearing

3-29 a



5. False statements - Knowingly makes any false
statement, misrepresentation, or certification;
knowingly renders inaccurate any monitoring
device or method, punishable by a fine of
$5,000 per violation

. Burden of proof — degree of knowledge or intent is
not greater than that required by Clean Water Act
[40 CFR 501.17(b)(2)] [40 CFR 123.2(b)(2)]

~ Public participation — provide for public
participation in State enforcement process by either
[40 CFR 501.17(d)] [40 CFR 123.27(d)]

1. Allowing intervention as a right by any
interested citizen in any civil or administrative
action

2. Not opposing citizen intervention when
permissive intervention is authorized, and

a. Investigating and providing responses to
all citizen complaints [123.26(6)(4)], and

‘b. Providing published notice and a 30 day
public comment period regarding any

proposed settlement of an enforcement action.

. Additional enforcement remedies (optional)

1. Authority to issue an administrative order to
abate any violation (40 CFR 123.27(a)(1)]

2. Authority to assess fines on an administrative
basis [40 CFR Part 22]

3-33

Regul: Ai rit
(citations)

He

SELLS



5.2.6 Joint Processing of Permits
The MOA ‘must contain provisions which specify Procedures for joint processing of permits by
the State and EPA, if applicable. For example, in the event that EPA remains responsible for
administrating specific permits (e.g., permits with a history of enforcement problems, or subject to
ongoing litigation), the MOA should provide for State/EPA coordination on the issuance of an EPA
sludge rider to the State permit.

5.2.7 Modification of MOA

The MOA becomes effective after it has been signed by the Regional Administrator and
approved by the Administrator. After its effective date, either the State or EPA may initiate
. procedures to modify it. EPA will initiate such action when necessary to ‘ensure State compliance
with all applicable Federal requirements. Modifications must be in writing and signed by the State
Director and Regional Administrator.

5.3. MODEL MEMORANDA OF AGREEMENT

The model Memoranda of Agreement is provided on the following pages.

54



State Self-Evaluation

Once a State becomes familiar with the contents and purposes of the Federal program, the next
steps are to analyze its own legal authority to administer a similar program and to estimate the
resources needed to run it effectively. The State’s legal analysis should examine statutes,
regulations, and applicable judicial decisions to determine whether there is a need for additional
statutory authority or revised regulations. The State must also explore sources of funding necessary

~ to administer the program. .

Meeting with EP,

At this point, if a State has not already done so, it should alert the EPA Regional Office of its
intentions and seek input and assistance on development of its program submission. The State should
meet with the EPA Regional staff to review State legal authorities, to anticipate program needs, and
to establish a timetable for assembling the program submission. This will ensure that all relevant
issues are raised at an early stage. ,

After the initial meeting with EPA, the State should revise its authorities, if necessary. Since
legislative enactments are a common source of delay in the approval process, these changes, if
needed, should be pursued as quickly as possible. By addressing EPA’s comments at this early
juncture, the remainder of the State’s program approval process can proceed quickly. The State may
then turn its attention to other documents required for the program submission. Once the State has
assembled its draft submission, it is forwarded to the EPA Regional Office for detailed review and

comment.

EPA Review of Draft Submission

The EPA Regional Office will provide EPA Headquarters [i-e., the Office of Water
Enforcement and Permits (OWEP)] with copies of the State’s draft submission. Both Headquarters
and the Region will then review the application to determine its consistency with the Clean Water
Act and the Federal sludge management program regulations. EPA Headquarters and the Regional ..
Office will coordinate their findings and provide the State with a single set of written comments.
Upon receipt of EPA’s comments on the draft program submission, the State may need to revise

program application documents to incorporate or otherwise resolve outstanding EPA concerns.

2-3

Ve



co-disposal landfills under 40 CFR Part 503, EPA decided to regulate the disposal of sludge in co-
disposal landfills through landfill design and operation requirements under 40 CFR Part 258.
However, Part 503 will require POTWs sending their sludge to a co-disposal landfill to meet the Part
258 requirements for material that a landfill may accept (e.g., that the sludge not be hazardous and
that it pass the Paint Filter Liquids Test), and a State must be able to impose these requirements on
the sending POTW. The submission should also include a discussion of the practices that will be ,
regulated in addition to those listed above.

4.1.2 Part 501 Scope

According to 40 CFR 501.12(a), the program application must describe the scope of the
program the State intends to administer. Since the scope of a State sludge management program
approved under Part 501 is the same as the scope of a program approved under Part 123, a State
developing a 501 sludge program should make sure that its submission addresses the points discussed
above in Section 4.1.1.

4.1.3 Partial Program Scope

EPA anticipates revising the NPDES regulations to provide regulatory language for partial
sludge management program approvals. Pending proposal of those revisions, EPA is willing to work
with States that are interested in partial sludge program delegation to prepare submissions for
approval. (After the regulations are effective, EPA will issue more specific guidance on partial ©
sludge programs). A partial sludge program will be allowed where a State agency has responsibility
for regulating one or more of the use or disposal practices listed in Section 4.1.1 above. As stated
in Chapter 1, partial sludge programs will be allowed either under Part 123 as a component of an
NPDES program, or under Part 501 as a non-NPDES partial program.

The State agency must have a complete permit program to qualify for partial program
approval, including permit development, issuance, compliance monitoring, and enforcement
responsibilities. The program will be required to cover all facilities utilizing the particular sludge
use or disposal practice falling within the State agency’s jurisdiction. The program must be
consistent with the maximum extent of the agency’s authority under State law. The State should be
prepared to explain why it is unable or unwilling to assume full program delegation. In addition, all
users and disposers under a particular practice are subject to the partial program, even if not required
to obtain a permit.

43

ve





Iv.

E.

Prt

Q

I,

A.

Does the submission specify the equipment to be provided by each agency/department for the
following:

Sampling equipment
Analytical equipment
Vehicles

Data management system
Safety equipment

YPYNe

. Does the equipment appear sufficient to accomplish the activities described?

. Does the submission provide an itemized estimate of costs to establish and administer this

Program for the first two years?

- Does the level of itemization contain distinct costs for each Program activity described in

Item C above?

Are the costs consistent with the personnel, equipment, and administrative activities
described?

Does the submission describe the sources and amounts of funding to meet the costs for the
first two years?

A Ri DURE!
Permit application:

1. Does the submission clearly describe how treatment works will be required to submit a
permit application?

2. Does the submission contain permit application form(s) that cover each sludge use and
disposal method?

3. Does the permit application require all information required by 40 CFR Parts 123 or 501?

a. Activities conducted by the applicant which require it to obtain a permit

b. Name, mailing address, and location of the treatment works treating domestic sewage
for which the application is submitted

c. Operator’s name, address, telephone number, ownership status, and status as Federal,
State, private, public, or other entity

d. Whether the facility is located on Indian lands

e. List of all permits or construction approvals applied for or received

f. Topographic map extending one mile beyond the Property boundaries of the treatment
works, depicting the location of the sludge management facilities, water bodies within
1/4 mile outside of the property boundary, and wells used for drinking water

— 8. Any sludge monitoring data the applicant may have, including available groundwater
monitoring data with the description of the well locations and approximate depth to
groundwater

h. Description of the applicable sludge use and disposal practices (including, where
applicable, the location of any sites where the applicant transfers sludge for treatment
and/or disposal, as well as the name of the applicator of contractor who applies or
distributes the sludge, if different from the applicant)

4-20 ;
van



Conflict of Inter:

The Clean Water Act contains “conflict of interest" provisions for State agency personnel.
Under Section 304(i) of the Act, a State agency or board which approves all or portions of permits
may not include in its membership any person who receives (or who during the past two years
received) a significant portion of income either directly or indirectly from permit holders or permit

applicants.’ In this way, the State can avoid any appearance of favoritism or undue influence.

EPA has defined “significant portion of income" to mean 10 percent or more of a person’s
gross income over a calendar year if the person is under 60 years of age. For persons over 60 years
of age, it means more than 50 percent of the gross income if received as part of a pension,
retirement, or other similar benefit [see 40 CFR 123.25(c)]. States submitting a program application
under 40 CFR Part 123 (i.e., as a component of an approved NPDES program) must meet these
requirements. For States submitting an application under 40 CFR Part 501, the Administrator may
waive these requirements if the agency or board meets a conflict-of-interest standard imposed under
another EPA-approved State permitting program, or an equivalent standard.’ In the event that more
than one State agency will administer the program, all of the agencies involved must satisfy this
requirement. Similarly, if the State intends to delegate all or any portion of the State sludge program
to a local entity (e.g., a County Board), that entity must also satisfy the conflict of interest
requirement.

Authority to Enter, Inspect, and Sample

The State agency must have the ability to enter all treatment works treating domestic sewage as
well as other facilities and sites used for sludge use and disposal to determine whether the facilities
are in compliance with Federal and State standards and requirements. This minimum Federal
requirement will be satisfied if the State agency can obtain a warrant to enter the facility in the event
that voluntary consent to enter is denied by the owner or operator of the premises. If State authority
does not currently extend to sludge sampling and the inspection of sludge facilities, including
disposal sites, a statutory amendment must be pursued.

‘The fact that a State agency has an NPDES or sludge permit does not mean that its employees
are considered "permit holders or applicants.” :

‘For example, the Clean Air Act’s conflict of interest provision at Section 128 requires that State
air agencies which approve permits or enforcement orders have at least a majority of members who
represent the public interest and do not derive a significant portion of their income from persons
subject to permits and orders and that any potential conflicts of the Director are disclosed.

27

3-9



4.7 PROGRAM DESCRIPTION CHECKLIST

I, PROGRAM SCOPE *.
A. Will the State’s program regulate:

Sludge-only monofills
Co-disposal landfills

Land application
Distribution and marketing
Incineration

Surface disposal

— 7. Other (Specify: )

B. If the program will regulate landfills, does the submission specify the following:

NAWPYNE

1, Sludge-only monofills

— a. Municipal
_— »b. Privately owned

2. Co-disposal landfills

__ a. Municipal
_. b. Privately owned

C. If the program will regulate land application, does the submission specify the following:

Agriculture

Silviculture

Grazing lands

Reclaimed lands

Dedicated land disposal sites

Other (Specify: e.g., highway medians, parks, golf courses)

AMPLY

D. Will the State’s program regulate Federal facilities? Will the State’s program require permits
for facilities other than treatment works treating domestic sewage? If so, which facilities or
persons?

E. Is the submission’s description of the program’s scope clear and comprehensive?

u. A A DMINI: TR RE
A. Will the State program be administered by more than one agency/ department?
B. Are two (or more) agencies responsible for one sludge use and disposal method?

__. C. Does the submission include an organizational chart?

+ . 4-18

7z. |
22


e A sketch or detailed description of the location of the facility described in the application.

The program submission should also specify procedures for developing appropriate permit
conditions, All permits must contain the minimum standard conditions specified
by the Federal regulations (see 40 CFR 123.41 and 501.15). These standard conditions are listed in
Table 3-4 in Chapter 3.

‘The program description must also contain a sample permit form. If permit forms differ for
different sludge use or disposal methods, a sample of each form should be enclosed.

Permi in

Each State agency participating in the sewage sludge management program must have
procedures to transfer, modify, revoke and reissue, or terminate permits. If these procedures are
contained in State regulations, additional narrative descriptions may not be necessary. However, if
State regulations allow broad discretion in the transfer of permits, the State may want to describe the

criteria and procedures that will govern such transfers. These requirements are found at 40 CFR
501.15(c).

General Permits. Under 40 CFR 501.15(e), the State has the option of applying for
approval to issue general permits to treatment works with similar operations and sludge use or
disposal practices. The treatment works must be within the same geographic area or political
boundaries, and may include sewer districts or authorities, cities, counties, or the State. The
treatment works to be included under the general permit must also all be subject to the same
standards, conditions, and monitoring requirements. General permits may not be appropriate for
Class I facilities, which usually require case-by-case permit conditions. The program description
must discuss potential groups of sludge users or disposers which may be regulated under a general
permit, as well as modifications to permit procedures which are peculiar to general permits.

Each agency must also provide the opportunity for facilities covered under existing individual
permits to apply for coverage under an applicable general permit. Likewise, facilities covered under
general permits must have the opportunity to “opt out" and apply for an individual permit. The

program description must include such procedures.

411

eS



to regulate sludge use and disposal. Finally, the State agency must define how these broad statutory
powers will be used through its adoption of administrative rules and Tegulations. This section
addresses the broad powers which must be conferred upon the State agency by the legislature,

3.1.1 Statutory Authority for a Program Under NPDES

A State agency implementing a sludge management Program under the auspices of an existing
NPDES program must review its current Statutory authority to ensure it meets Federal requirements.
At a minimum, the State must have the Statutory authority to:

¢ Regulate all sludge use and disposal methods proposed to be managed under the program;
¢ Require compliance with sludge standards by any user or disposer;

Abate hazards to public health and the environment caused by improper sludge
transportation, storage, or disposal;

¢ Issue permits implementing Federal sludge standards to treatment works treating domestic
sewage;

¢ Require submission of sludge use and disposal information by permit applicants;
© Require submission of information from the regulated community;
° Modify, revoke, and reissue or terminate permits for cause;
° Require public and governmental access to information;
e Require members of permitting agency to meet a conflict-of-interest provision;
¢ Enter, inspect, and sample to determine compliance with applicable regulations and permits;
¢ Abate violations of the sludge management program;
e Seek injunctive relief where warranted; and

© Seek civil and criminal penalties against violators.

EPA will not approve a sludge management Program under 40 CFR Part 123 when a State
lacks the authority to perform any of the functions listed above. The State must establish that legal
authority exists to issue NPDES permits for sludge use and disposal. Existing State statutory and
regulatory provisions regarding inspection, monitoring, reporting, and enforcement must be broad
enough to include implementation of sludge requirements under the State’s current NPDES program.

3-2

L2



circumstances. These reasons for modification applicable to sludge permits are listed in Table 3-5.
As the table indicates, some of these reasons are considered major modifications, whereas others are
considered minor. Major permit modifications must undergo a public notice and comment process.
Although a State agency may adopt any or all of the causes listed in 40 CFR 501.15(e)(2)(Gi) or 40
CFR 122.62 and 122.63, it may not add others to the list.

TABLE 3-5. GOOD CAUSES FOR PERMIT MODIFICATION

© Substantial alterations at the treatment works

e New information since issuance

« New regulations since issuance

« Compliance schedule extensions

© To implement a reopener clause in the permit

e Adding land application plans

© Correct technical or legal mistakes

© Correcting typographical errors”

© Imposing additional self-monitoring or reporting”

© Change of interim compliance data in schedule of compliance”

© Changes in ownership/operator®

“Indicates modification is considered minor

3-19

SF



4.2.1 NPDES Program Organization

If the sludge program is to be part of the State’s NPDES program, the program submission
only needs to identify organizational and administrative changes which reflect personnel involved in
sludge use and disposal. This brief description should be accompanied by an organizational chart
which illustrates delegation of responsibility for implementation and oversight of the sludge
management program. :

4.2.2 Part 501 Program Organization

If the State intends to implement its sludge program under Part 501, the organizational
description of the program must be more comprehensive than the comparable description under a
State’s NPDES program. Since no framework for the program exists, more detail is required to
explain to EPA exactly which agencies are involved, what their responsibilities are, and how they
interact. The following subsections indicate the organizational issues which must be clarified in the

State’s program submission.

Itiple State ncies With Manageme! i biliti

States regulating, or intending to regulate, various classes of sewage sludge use and disposal
commonly have management responsibilities in more than one State agency (or divisions within an
agency). The State may have as many agencies involved in sludge management as it has regulated
methods of sludge use and disposal. Its program description needs to identify the agency responsible
for each method specified in the program’s scope and to delineate clearly the jurisdiction of each
agency involved in the program. For example, a State may have one agency responsible for land
application of sewage sludge and another agency responsible for landfills, or one agency with
statewide jurisdiction for POTWs while another administers the program to all other treatment works
(i.e., privately owned facilities, Federal facilities, and commercial sludge treatment and distribution
or disposal facilities). The program submission must clearly detail both the division of
responsibilities within and between the agencies and their procedures for coordination. This
discussion should also explain any overlap of responsibilities between the agencies. If interagency or
intra-agency agreements will be necessary, a copy of these agreements should be included in the
program submission. Interagency agreements may be submitted as draft, but must be final at the

time of program approval.

45 iP?



rit Im eral Requireme:

The State must.be able to impose either Federal standards or equivalent State standards to
regulate sludge use and disposal. Existing Federal requirements for sludge use and disposal on land
and in landfills are found at 40 CFR Part 257. EPA recently proposed comprehensive technical use
and disposal standards and requirements at 40 CFR Part 503. In anticipation of the promulgation of

“these Federal standards, a State statute must authorize the State agency to adopt State use and
disposal standards. Further, these standards should be self-implementing, i.e., enforceable whether
or not they are imposed by a permit. Upon Federal promulgation, these standards should be set out,
either verbatim or through incorporation by reference, in the State agency’s regulations. A State
should be aware that incorporation by reference of unpromulgated Federal regulations may be
considered invalid as an improper delegation of legislative powers from a State to EPA. Thus, the
State program submission should clearly indicate the State’s intention to adopt the standards, once

promulgated, and should indicate the timetable for‘their adoption. _

Federal Compliance Deadlines

State statutes for implementing a sludge management program must allow imposition of the
CWA deadlines for compliance with EPA’s use and disposal standards and requirements. Existing
Federal requirements at 40 CFR Part 257 are currently effective and require immediate compliance.
Section 405(d)(2)(D) of the CWA requires compliance with EPA’s technical use and disposal
regulations as soon as feasible but in no case later than 12 months after promulgation (unless
construction is necessary for compliance, in which case, compliance myst occur no later that 24

months from the date of promulgation). A State statute must reflect these time frames.

Authority to Take Actions to t Public Health the Environmen

The State agency applying for program approval must have the authority to respond to any
public health or environmental threat posed by sludge use and disposal. A State must be able to act
quickly to order persons responsible for creating such threats to cease their activities.

Alternatively, the State agency should be authorized to abate the threats through direct and immediate
corrective or remedial action, such as injunctive relief to prevent.tlireatened or continuing hazards or
the right to enter private premises to take corrective action when necessary to protect public health
and the environment. ,

3-5

2S



Item Frequency of Submission
4. Copies of all EPA enforcement As performed

actions against permit violators

(including notice of violation,

and administrative orders).
5. A review of the State administration As performed

of the Sludge Management Program
based on State reports, meetings with
State officials, and file audits.

C. The State shall transmit a copy of every issued sludge use or disposal permit to any affected State no later than
_— days after its issuance.

. Section VI. Program Review

A. To fulfill its responsibility for assuring the Sludge Management Program requirements are met, EPA shall:
1, Review the information submitted by the (State Agency);

2. Meet with State officials from time to time to discuss and observe the data handling, permit processing,
and enforcement procedures, including both manual and ADP processes;

3. Examine the files and documents at the (State Agency) regarding selected facilities to determine: ‘'a) whether
permits are processed and issued consistently with Federal requirements; b) whether the (State Agency) is able to
discover permit violations when they occur; c) whether (State Agency) reviews are timely; and d) whether (State
Agency) selection of enforcement action is appropriate and effective. EPA shall notify the (State Agency) in
advance of any examination under this paragraph so that appropriate State officials may be available to discuss
individual circumstances and problems. EPA need not reveal to the (State Agency) in advance the files and
documents to be examined. A copy of the examination report shall be transmitted to the State when available;

4. Review, from time to time, the legal authority upon which the State’s Program is based, including State
statutes and regulations;

5. When appropriate, hold public hearings on the (State Agency's) Sludge Management Program; and
6. Review the (State Agency) public participation policies, practices, and procedures.

B. Prior to taking any action to propose or effect any substantial amendment, recision, or repeal of any statute,
regulations, directive, or form which has been approved by EPA, and prior to the adoption of any new statute,
regulation, directive or form, the (State Agency) shall notify the Regional Administrator and shall transmit the text
of any such proposed change or new form to the Regional Administrator. These changes may necessitate a
program revision which must be approved by EPA pursuant to 40 CFR 501.32 (and by reference, 40 CFR 123.62).

C. If an amendment, recision, or repeal of any statute, regulations, directive, or form described in paragraph (B)
above shall occur for any reason, including action by the (State) legislature or a court, the (State Agency) shall
within ___ days of such event, notify the Regional Administrator and transmit a copy of the text to the Regional
Administrator.

D. Prior to the approval of any test method other than those specified for sludge use and disposal in 40 CFR Part
136, or when adopted, Part 503, the (State Agency) shall obtain the approval of the Regional Administrator [40
CFR 501.14(10)(iv)].

E. The (State Agency) shall seek and adopt such regulations, provide Attorney General opinions, and take further
actions necessary to preserve and maintain any compliance with Sludge Management Program requirements.

ta

‘ : 5-14



State. Regulatory Authority
: (citations)
1. Duty to comply with permit and 503 standards
2. Duty to mitigate violations
3. Proper operation and maintenance
4. Inspection and entry

a. Right of entry by State personnel or agents

b. Access to inspect all parts of facility at
any reasonable time

c. Sample and monitor to assure compliance

d. Access to inspect and copy any records
related to sludge

5. Duty to provide information, including
self-monitoring data
6. Self-monitoring reports shall include:

a. Date, exact place, and time of sampling
measurements

b. Individual(s) who perform the sampling or

measurements

Date(s) analyses were performed

Individual(s) who performed the analyses

Analytical techniques or methods used

Results of such analyses

me ao

7. Test procedures as specified in 40 CFR Parts
503 and 136 or other procedures specified
in permit

8. Self-monitoring report signatory and
certification requirements

9. Duty to retain all records relating to sludge
sampling data, use and disposal for at
least 5 years

10. Compliance deadlines a

a. Require compliance as soon as possible,
but no later than any applicable regulatory
deadline under Section 405 of CWA

b. If schedule exceeds one year from the date
of issuance, the milestones shall not exceed

six months ——
c. Milestone reports due no later than 14 days J
following each interim date

d. Final report of compliance or noncompliance
due no later than 14 days following final
date of compliance —_—_.

3-26



2. With respect to modifications or revocations and reissuances of permits, EPA waives the right to review
any permit for which either the right to review the original permit was waived (unless the modification would put
the permit into one of the categories in paragraph D.1 above) or the modification qualifies as minor as defined in
40 CFR 122.63 [40 CFR 501.15(e)(3)]. .

3. \ EPA reserves the right to terminate the waivers in paragraphs D.1 and D.2 above, in whole or in part,
at any time. Any such termination shall be made in writing to the (State Agency).

4. The foregoing waiver shall not be construed to authorize the issuance of permits which do not comply
with applicable provisions of Federal laws, regulations, or guidelines, nor to relinquish the right of EPA to petition
the (State Agency) for review of any action or inaction because of violation of Federal laws, regulations, or
guidelines.

E. Public Participati

1. Permit applications, draft permits, public notices, and fact sheets or statement of basis (when prepared)
will be made available to any party upon request and payment of applicable State duplicating fees.

2. The (State Agency) will prepare and distribute copies of all public notices and fact sheets in accordance
with 40 CFR 501.15(d)(4) and (5) unless otherwise waived by the specific organization.

3. All Class I sludge permits shall be public noticed in a daily or weekly newspaper within the area
affected by the activity, in accordance with 40 CFR 501.15(d)(5)(B).

F. Issuance o! its or Notice of Intent to Den

1. If the final determination is to issue the permit, the final permit will be forwarded to the permit
applicant, along with a transmittal letter notifying the applicant that the permit is being issued. Copies of issued
permits will be forwarded to EPA within days.

2. If the final determination is to deny the permit, notice of intent to deny shall be given to EPA and to
the applicant in accordance with Sludge Management Program within days.

3. If facility must be permitted by both the State and EPA under different programs, the State.and EPA
may agree to consolidate processing of permits. The State and EPA may coordinate the expiration dates of new
and existing permits so that processing of renewal applications may be consolidated. The following procedures
shall be used for joint State/EPA permit processing:

G.  Terminatior lodification, Revocation Reissuance of Permits

Except as waived in paragraph D.2 above, the (State Agency) shall notify EPA whenever it intends to
terminate an issued sludge use or disposal permit. In addition, the (State Agency) shall transmit to EPA a copy
of any permit which it proposes to modify or revoke and reissue with the proposed changes clearly identified. The
procedure set forth in paragraphs C.2 and 3 above shall be followed with respect to modifications by the (State
Agency) of any issued permit. For purposes of this agreement, each permit proposed to be modified shall be
deemed a newly proposed draft permit, except for minor modifications as described in 40 CFR 122.63 [40 CFR
501.16(e)(B)]. . :

H. Administrative or Court Action
If the terms of any permit, including any permit for which review has been waived pursuant to paragraph
D above, are affected in any manner by administrative or court action, the (State Agency) shall immediately

transmit a copy of the permit, with changes identified, to the Regional Administrator and shall allow __ days for
EPA to make written objections to the changed permit.

ST



The permitting process discussion should outline the administrative procedures used to review
applications. This description may take the form of a chart or flow diagram depicting the
steps. It should describe how the agency will follow up recei pt of the application and

obtain all requisite information. The description should also establish time frames for the review
period in which a permit must be either drafted or denied. Further, the permitting description should
include procedures for administrative, judicial, and EPA review, and to the extent that the State
regulations are not specific, briefly highlight the State’s permit appeals Process.

i velopment and Contents

In describing development of the draft permit, the submission should identify when fact sheets
will be used and how they will be prepared.' The State should also examine its procedures to ensure
that fact sheets will contain the minimum information required by Federal regulations:

¢ Brief description of the type of facility;

¢ Type and quantity of sludge;

° Brief summary of the reason for the draft permit conditions, including references to
applicable statutory or regulatory provisions and appropriate supporting references to the "-
administrative record; and : .

¢ Any calculations or other necessary explanation of the derivation of the following sludge
limitations and conditions, including a citation to the applicable standard provisions and
reasons why they are applicable:

- Limitations to control toxic pollutants
- Limitations on indicator pollutants
- Limitations on a case-by-case basis.

In addition, all fact sheets should include:
© Name and telephone number of the permit writer or other contact person;

© For every permit issued to a treatment works owned by a person other than the State or a
municipality, an explanation of the Director’s reasons for permitting the facility; and

‘The Federal regulations Tequire all draft permits to be accompanied by a fact sheet. Fact sheets
are required for every Class I sludge management facility permit and for any other draft permit that:
Requires conditions developed on a case-by-case basis to implement Section 4(05(d)(4) of the Clean
Water Act; includes a sewage sludge land application plan; or the State finds is the subject of public
interest or raises major issues. .

4-10

a



L Class I Sludge Management Facilities List

There shall be included, as a part of either the program description or the annual State 106 program plan,
& Class I Sludge Management facilities list. This list shall include all POTWs identified under 40 CFR 403.8(a)
as requiring a pretreatment program and any other treatment works which the Regional Administrator, in
conjunction with the State Program Director, classifies as a Class I Sludge Management Facility due to the potential
of its sludge use or disposal practices to adversely affect public health or the environment.

J Evidentiary Hearings

1. _ EPA will retain responsibility over permit appeals or requests for modification which are pending at
the time of program approval. In the event that such permit appeals or requests for modification remain unresolved
at the time the EPA-issued permit expires, the (State Agency) will assume jurisdiction over the appeal or request
unless it agrees that a particular matter should be resolved by EPA.

2, The (State Agency) will provide EPA with a copy of all precedent setting settlements and administrative
or judicial decisions which affect the (State Agency's) ability to implement the Sludge Management Program in
accordance with Federal requirements.

Section IV. Enforcement

The (State Agency) agrees to maintain a vigorous enforcement Program (including a compliance assessment
of sludge users and disposers) and to take timely and appropriate enforcement actions where warranted. Sludge
use and disposal practices endangering public health shall receive immediate and paramount attention.

A. Compliance Monitoring

The (State Agency) shall operate a timely and effective compliance monitoring Program, including an
automatic data processing (ADP) and/or manual tracking system, to determine compliance with permit conditions:
and pretreatment requirements (when applicable). For purposes of this MOA, the term “compliance monitoring"
includes all activities taken by the (State Agency) to assuré full compliance with the Sladge Management Program
requirements. The (State Agency’s) monitoring program shall consist of two main activities:

1, Compliance Review - The (State Agency) shall conduct timely and substantive reviews and shall keep
complete records of all written materials relating to the compliance status of sludge permittees, including:
compliance schedule reports, discharge monitoring reports (if applicable), compliance inspection reports, and any
other reports that permittees may be required to submit under the terms and conditions of a sludge use or disposal
permit, approved program, or court order.

The (State Agency) shall operate a system to determine if:

¢ Self-monitoring reports required by permit or sludge management regulations are submitted;
© Submitted reports are complete and accurate; and
‘Permit conditions and any other applicable requirements are met.

The (State Agency) and EPA shall have periodic enforcement conferences to decide priorities for initiating
enforcement actions and to coordinate enforcement activities. .

‘The (State Agency) shall initiate appropriate enforcement actions whenever required performance is not
achieved or when reports are not received. In the case of violation by a Class I facility, the (State Agency) shall
initiate an appropriate enforcement action within days of the date such report was or should have been received
by the State. Priorities for reviewing these reports and for initiating enforcement actions will be specified in
procedures set out in the program description.

5-10

re



program approval. As mentioned earlier, EPA is currently developing comprehensive sludge use and
disposal standards and requirements (to be set out in 40 CFR Part 503). States approved prior to the
formal announcement of these standards will be required to adopt them once they have been
promulgated. States seeking approval after they are promulgated must adopt them as State standards

prior to program approval.

There are two basic methods of converting Federal standards into State standards. First, a State
may insert the Federal standards into its regulations verbatim. Although this method clearly places
the regulated community on notice of these requirements, it is time consuming and duplicative.’
Second, the State can incorporate the Federal standards into its regulations by reference. This
involves a statement of intent to incorporate, citation to the materials being incorporated, and a date.
An example of incorporation by reference is shown in Table 3-3. The State should examine

requirements of State law regarding the exact format for an incorporation by reference.

States that seek to incorporate by reference prospectively (i.e., by expressing the intent to
automatically adopt future regulations upon their promulgation) are cautioned that a number of State
Courts have held prospective incorporation by reference to be an unconstitutional delegation of
legislative authority to EPA. Therefore, unless the State has upheld prospective iricorporation, States
should wait until the Federal standards are final before adopting them. Moreover, since EPA intends
to periodically review and revise these standards, States incorporating them by reference will have to
periodically reincorporate the correct standards to ensure their enforceability and consistency with
Federal law.

C/834-03-301-02c/TABLE.3-3

The Federal sewage sludge use and disposal standards set out in 40 Code of Federal Regulations
(CFR) Part 257, as they appear on (today or an earlier date), are hereby incorporated by
reference and are enforceable requirements under State law.

7Where the program is administered by several State agencies, each agency need only adopt those
Federal standards for which it will be responsible.

3-13

BF



on Municipal Sludge Management). Thus, EPA encourages States to assume responsibility for
implementing the sludge permitting program by submitting a program application for approval.

Through. the program approval process, a State demonstrates that it has an effective sludge
program that will implement and enforce Federal standards. There are several advantages to
obtaining Federal approval of State sludge management programs:

¢ Many States already have effective sludge management programs in place. Their experience ~ .
and expertise can ensure implementation of the Federal sludge standards (40 CFR Part 503) ~
in an efficient and comprehensive manner;

e States are in a better position to apply Federal and State standards in a manner that
encourages beneficial use and promotes sludge as a resource;

¢ States obtaining program approval will retain maximum control over State and local
decisions and policies governing safe use and disposal of sewage sludge; and

© States obtaining program approval will eliminate disruption to existing sludge programs.
(Unless the State obtains approval for its own sludge program, EPA will be required to
permit all treatment works in the State which treat domestic sludge. Thus, these facilities
could be required to obtain both Federal and State permits.)

Section 405 of the CWA allows States two options for seeking EPA approval of a State sludge
management program. A State with an approved NPDES program (these States are listed in
Table 1-1) may choose to integrate sludge use and disposal regulations into its NPDES program. To
obtain approval for this revised NPDES program, a State need only augment the materials previously
submitted under 40 CFR Part 123 to explain how sludge management will be implemented through
its NPDES program. Similarly, a State seeking approval of its NPDES program may include a
sludge management component in its program submission.

Alternatively, a State may choose to issue sludge permits separately from NPDES, such as
through a solid waste program that manages land disposal or an air program that manages sewage
sludge incinerators. It is not necessary for a State to have an approved NPDES program to gain
approval for a sludge management program. Dividing the sludge permitting responsibilities among.
several State agencies is also an option. ‘These non-NPDES programs are submitted and evaluated
using the procedures set forth in 40 CFR Part 501.



c. A new source submits an application at
least 180 days prior to commencing operations
d. A permit will not be processed until the
applicant has fully complied with the
application requirements

. Draft permits

a, Issue whenever decision is made to issue,
modify, or revoke and reissue a permit

b. Draft permit must include all required
permit conditions

. Fact sheets for draft permits
a. Fact sheets shall be prepared for:
© Class I sludge management facilities
© Permits requiring case-by-case conditions
« Permits which are the subject of widespread
public interest or raise major issues
b. Fact sheets shall include:
¢ Brief description of facility or activity
¢ Calculations/explanation of derivation of
conditions for sludge use and disposal
¢ Brief description of how each of the *
required elements of the land application
plan area is addressed, where applicable

- Public notice of permit actions and public
comment period

a. Types of notification

© Notice of intent to issue a permit
© Notice of intent to terminate a permit

b. 30 days for public comment

¢. 30 days notice before any scheduled
public hearing

3-28

State Regulatory Authority
(citations)

Yo



1.2 BACKGROUND OF THE SLUDGE PROGRAM

For nearly two decades, the focus of EPA and State Wastewater control programs has been to
Prevent pollutants from reaching surface waters. The vigorous administration of the NPDES permits
Program under the Clean Water Act (CWA) has forced the development and installation of
technologies capable of achieving significant pollutant removal from industrial and municipal
wastestreams. However, the success in cleaning the Nation’s waterways has led to a concern that
toxic and nonconventional pollutants removed from wastewaters by the treatment Process are ending
up in the sewage sludge, thus contaminating the sludge and making it more difficult to take
advantage of its beneficial Properties. The challenge facing Federal, State, and local governments is

to control the generation, use, and disposal of sewage sludge to maximize its beneficial uses and
éhsure that it is safely disposed of in a manner that protects public health and the environment.

CWA Section 405 requires EPA to promulgate standards for the use and disposal of sewage
sludge that protect public health and the environment. On February 6, 1989, EPA proposed such
standards for five sludge use and disposal practices (54 Fed. Reg. 5746). These rules are scheduled
to be promulgated in late 1991. In addition, when the U.S. Congress amended the CWA on
February 4, 1987, it amended Section 405 to require that sludge standards be implemented through
permits issued by EPA or by a State pursuant to an approved program. On May 2, 1989, EPA
promulgated regulations establishing sludge permitting requirements and Procedures, as well as

~requirements for State sludge Programs (see 54 Fed. Reg. 18746). These regulations are set forth in
40 CFR Parts 122, 123, 124, and 501. Prior to the promulgation of the technical standards, EPA
will focus on regulating Publicly Owned Treatment Works (POTWs) through NPDES permits issued
under CWA Section 402, under EPA’s Interim Permitting Strategy.'

1.3. STATE INVOLVEMENT IN THE CLEAN WATER ACT SLUDGE PROGRAM

The CWA amendments and the promulgation of Federal sludge permitting and State program
regulations establish a legal and Programmatic framework for a-national sludge use and disposal
Program. Like the NPDES program, Congress intended the sludge management program to be
implemented and enforced primarily at the State level. EPA believes that sludge management
remains a local concern that should be handled at the State and local levels (see EPA’s 1984 Policy

‘States may participate in this interim program by entering into an informal agreement with EPA

or by obtaining full program approval. See the Sewage Sludge Interim Permitting Strategy, Office of

Water Enforcement and Permits, September 1989.

1-2

x



3.4 STATUTORY AND REGULATORY REQUIREMENTS CHECKLIST
A. STATUTORY AUTHORITY REQUIREMENTS .

I. General Program Requirements State Statutory Authority ‘

(citations)

A. Authority to regulate use and disposal of sewage sludge

[40 CFR 501.1(4)(1)(ii)] [40 CFR 122.1(6)(3)(4)]

1. Land application

2. Landfilling (sludge monofill)

3. Distribution and marketing

4. Incineration

5. Surface disposal sites

6. Other(specify:)
B. Authority to regulate transportation and storage of sewage

sludge [40 CFR 501.1(d)(1)] [40 CFR 122.1(g)(7)] .
C. Authority to regulate the use or disposal of sewage sludge

by users or disposers of sewage sludge [40 CFR 501.1(¢)(1)(2)]

[40 CFR 122.1(g)(6)(7)] .
D. Authority to take actions to Protect public health and the

environment from any adverse effects [40 CFR 501.1(c)(4)]

[40 CFR 122.1(6)(4) and (g)(5)]

Ul. Permit Requirements

A. Authority to issue permits to any POTW or other treatment
works treating domestic sewage (including Federal facilities)

[40 CFR 501.1(c)(2)] [40 CFR 122.1()(3) and (g)(6)} ee

B. Authority to require permit applicants to submit information
on their sludge use and disposal practices [40 CFR 501.15(a)(2)
{40 CFR 122.21(c)(2) and @G)Gd]

——______
C. Authority to modify, revoke and reissue, or terminate permits
for cause [40 CFR 501.15(6)(7)(8) and (d)(2)] [40 CFR 122.62]
[40 CFR 122.5(a)(1)] _
TI. Access to Information _
A. Public access to permit applications, permits, and effluent/sludge
information [40 CFR 501.15(a)(1)] [40 CFR 122.7()] ee

3-22

LE



3. LEGAL AUTHORITY
In order to demonstrate a State’s ability to implement and enforce sludge use and disposal
requirements, EPA requires that State program submissions include copies of the State’s statutes and
regulations. These State laws establish the legal basis to implement and enforce the sludge program
and must be at least as stringent as Federal requirements.

This chapter is designed to assist a State and EPA in reviewing its legal authorities to determine
whether the scope and stringency of State statutes and regulations are equivalent to Federal
requirements. Those States planning to administer the Federal sludge program as a part of the
NPDES program should have much of the basic structure needed for a sludge program already in
place. A State with an existing sludge management program need only supplement its current
authority to conform with EPA’s minimum requirements.

In addition to submitting copies of its laws and regulations, a State must also provide a written
opinion from its Attorney General that the existing legal authority is sufficient to implement and
enforce the program described in the program description (see Chapter 4).' This "Attorney General’s
statement" is discussed in greater detail in Section 3.3 below; Appendix A contains a model Attorney
General’s statement. ;

A checklist outlining the statutory and regulatory requirements for a sludge program appears at
the end of this chapter. It follows the same order as the text of this chapter and provides citations to
the applicable Federal regulations. By using the checklist, the State can ensure that its legal
authority satisfies Federal requirements. :

3.1 STATUTORY AUTHORITY

A State agency’s legal authority to regulate sludge use and disposal is derived from several .
sources, First, the State Constitution must provide the State government with the power to make
laws ensuring public health and welfare. Second, the State legislature must authorize a State agency *

‘When the State agency implementing the sludge program has independent legal counsel, this
statement may be signed by that counsel, if he or she is authorized to represent the agency in court
on all matters. If sludge is to be regulated by two or more State agencies (e.g., a State Water Board
and a Solid Waste Management Commission), and each has separate in-house counsel, both will be
required to submit statements for their respective agencies.

3-1

Al



State Conducts

Self-Evaluation of
Legal Authority and
Resources

STATE ACTIVITIES

EPA ACTIVITIES
State Determines State Meets with EPA
to Seek Regional Staff
Program Approval ei
State Submits Draft EPA Headquarters
Application to EPA -—"} and Region Comment
Regional Office on Draft

State Revises
Application and
Formally Submits to
EPA Regional
Administratror

State Submits

Additional Materials -

Region, with Headquarters
Concurrence, Determines
Completeness within 30 |

Days

i

Proposed Approval

Publicly Noticed by Region

~ (Opportunity for Public
Hearing)

Approval
Publicly Noticed

Comments Considered in
Final Agency Decision

2-4

FIGURE 2-1. OVERVIEW OF THE STATE PROGRAM APPROVAL PROCESS

JE



APPENDICES

APPENDIX A - MODEL ATTORNEY GENERAL’S STATEMENT ...........--- A-l
APPENDIX B - ORGANIZATIONAL CHARTS ........00 000 e eee eee eres B-1
LIST OF TABLES AND FIGURES
TABLE : PAGE

TABLE 1-1 STATES APPROVED TO ADMINISTER THE NATIONAL POLLUTANT

DISCHARGE ELIMINATION SYSTEM (NPDES) PERMITTING

PROGRAM ... 02. cece eects 14
TABLE 2-1 ELEMENTS OF STATE PROGRAM SUBMISSION .........----- 2-2
TABLE 3-1 FEDERAL DEFINITION OF SEWAGE SLUDGE .......-.-- 055 34
TABLE 3-2. TERMS WHICH SHOULD BE DEFINED IN STATE LEGAL

AUTHORITIES 0.0.0.0 0c cece teen tenet eee 3-12
TABLE 3-3 EXAMPLE INCORPORATION BY REFERENCE LANGUAGE ......- 3-13
TABLE 3-4 STANDARD CONDITIONS TO BE PLACED IN ALL SLUDGE USE .

AND DISPOSAL PERMITS .......0 0000s cece rete nes 3-17
TABLE 3-5 GOOD CAUSES FOR PERMIT MODIFICATION ......-..----- 2 39
TABLE 5-1 REPORTS TOEPA ....-... 002s eect eee tet eeteenes 5-4
FIGURE . PAGE

FIGURE 2-1 OVERVIEW OF THE STATE PROGRAM APPROVAL PROCESS ...... 24





ensure the public’s right to participate in, and have adequate notice of, enforcement actions. These
requirements are discussed in greater detail in Chapter 3.

417



hori i Tr ent We

in; i age

A State statute must also provide the State agency with the authority to require Publicly Owned
Treatment Works (POTWs) and other treatment works treating domestic sewage to obtain permits for
sludge use and disposal. EPA has defined -"treatment works treating domestic sewage" as any
facility, including Federal facilities and any privately owned treatment works which Stores, treats,
recycles, or reclaims sewage sludge [see 40 CFR 122.2 and 501.2]. This definition includes
facilities which generate or process sludge, or which control either sludge quality or the manner in
which it is disposed. Examples are incinerators, commercial sludge handlers which process POTW
sludge for distribution and sale, and owners and operators of sludge disposal facilities.

The following three categories of persons are not considered "treatment works treating domestic
sewage," and hence are exempt from the permit requirement:

* Owners of land used for the beneficial reuse of sludge, such as farm lands and home
gardens;

¢ Commercial distributors/disposers which do not alter the nature of the sludge prior to
distribution or disposal; and

* Individual septic systems as well as septage pumpers and haulers,” including those pumping
residues from portable toilets or Type III marine sanitation devices.

The State is free to require permits of any or all of these Persons since States may enact sludge
requirements which are more stringent than Federal requirements.

Ata minimum, it is recommended that the State statute contain broad authority which will
enable the agency to require treatment works treating domestic sewage to obtain a permit in order to
engage in these activities. Further, the statute should set out the basic contents of these permits
(e.g., conditions imposing the technical use and disposal standards, self-monitoring and Teporting
requirements, and such other conditions as a State agency deems necessary to carry out the purposes

While these persons are not "treatment works treating domestic sewage” and therefore, do not
tequire a permit, their activities remain subject to the Federal use and disposal standards and
Tequirements. As discussed above, the State must have the authority to require compliance by these
users and disposers.

*Septage treatment and disposal systems are considered "treatment works treating domestic
sewage" and thus must be covered by a permit.

3-4

Ze



© Standards of Performance for New Stationary Sources - Sewage Treatment Plants, October
6, 1988, 53 FR 39412

* Proposed Codisposal Sewage Sludge Regulations, August 30, 1988, 53 FR 33314.

1.5 ORGANIZATION OF THIS MANUAL

The remainder of this manual is organized into four chapters and two appendices. Chapter 2
reviews the basic contents of a Program application and outlines EPA’s Procedures for program
approval. Chapter 3 presents minimum statutory and regulatory authority which the State needs to
implement and enforce a sludge Program. Chapter 4 details the contents of the Program submission,
including the program’s organization; necessary resources; and procedures for reviewing permit
applications, drafting and issuing permits, conducting compliance monitoring, and taking enforcement
actions. Chapter 5 discusses the Memorandum of Agreement between the State and the EPA
Regional Office, which explains how they will work together after the program is approved.
Example MOA appear at the end of that chapter.

Two appendices are also contained in this manual. Appendix A contains a model Attorney
General’s statement. Appendix B provides example organizational charts of a State agency
administering the State’s sludge program.

14

ZS



Changes will be necessary to make the State NPDES regulations apply to sewage sludge use and
disposal. At a minimum, the State should have the following seven regulatory provisions:

« Scope of program/definitions;

« Sludge standards and conditions;

© Permit applications and signatories;
e Permit contents;

e Permit issuance;

« Entry and inspection; and

e Enforcement.
These provisions are discussed in more detail in the following sections.

3.2.3 Regulatory Authority for a ram Under Part 50:

Under Federal requirements, a State desiring to run its own sludge management program must
have the regulatory framework to implement and enforce it. A State sludge program under 40 CFR
Part 501 must contain the same seven regulatory provisions listed above. The following discussion

describes each provision in more detail.

Scope of Program/Definitions

The "Definitions" section of the regulations assists in establishing the scope and applicability of
the State program. A State must define terms so that the scope and applicability of its program is as
broad as that of the Federal program. For example, in defining “person,” the State must include
Federal and State facilities as well as individuals, corporations, associations, partnerships, and
municipalities in order to achieve the same programmatic scope as EPA. Table 3-2 contains a
number of terms which should be used and defined in State regulations. In reviewing a State’s legal
authority, EPA will pay particular attention to definitions for such phrases as “sewage sludge,"
“treatment works treating domestic sewage,” "dedicated land," and ‘other terms whose meaning or

scope will be critical to understanding the State’s ability to implement and enforce Federal standards.

Sludge Standards and Requirements

The State must adopt Federal sludge standards and requirements as State law or adopt more
stringent State standards. The State must adopt the requirements set out in 40 CFR Part 257 to gain

3-11

~ 4/





Section VIII. Independent EPA Powers

Nothing in this MOA shall be construed to limit the authority of EPA to take action pursuant to sections 308,
309, 405, 504, or other sections of the CWA, or to limit its oversight responsibility with respect to Sludge
Management Program administration. This MOA is for the administrative convenience of EPA, and does not
confer any rights on violators.

Section IX. Computations of Time

A. In computing any period of time prescribed by this MOA, the day on which the designated period of time
begins shall not be included. The last day of the period shall be included unless it is a Saturday, Sunday, or legal
holiday, in which case the period extends until the end of the next day which is not a Saturday, Sunday, or a legal
holiday. When the period of time is less than seven (7) days, intermediate Saturdays, Sundays, or legal holidays
shall be excluded in the computation.

B. For the purpose of EPA review of permit applications, draft or proposed permits, or permit modifications, the
period for review shall not commence until received by EPA.

Section X._ Modification

This MOA shall take effect immediately upon approval by the Administrator. Either the (State Agency) or EPA
may initiate action to modify this MOA at any time. If the Administrator determines that any modification to the
MOA initiated by the (State Agency) does not conform to the requirements of section 402(b) or 405 of the CWA,
the requirements of 40 CFR Part 501, or to any other applicable Federal regulation, the Administrator shall notify
the (State Agency) in writing of any proposed revision, or modifications which must be in this agreement. Any
proposed amendments or revisions must be in writing and signed by the (State Director) and the Regional
Administrator, with the prior concurrence of the Director, EPA Office of Water Enforcement and Permits and EPA
Associate General Counsel for Water. In no event may any State/EPA agreement override this Memorandum of
Agreement. ‘

Section XI. Incorporation by Reference

" Wherever a State is required to adopt Federal standards or requirements, it may do so by incorporation by
reference. Unless permissible under State law, States will not prospectively incorporate unpromulgated regulations
by reference.

In witness whereof, the parties execute this agreement.

FOR STATE AGENCY:

Director (Date)
State Agency

FOR U.S. ENVIRONMENTAL PROTECTION AGENCY:

Regional Administrator, (Date)
Region

S-15



2. PROCEDURES FOR STATE PROGRAM APPROVAL,
MODIFICATION, AND WITHDRAWAL

This chapter addresses the process by which a State sludge program application is assembled
and explains the steps EPA will follow in evaluating the documents, including public involvement,
prior to a decision on approval. The chapter also briefly discusses the procedures for program

revision and withdrawal.

2.1 APPROVAL OF STATE PROGRAMS

CWA Section 405 provides flexibility with regard to State organization of sludge management
programs by establishing two approaches for program approval:

e Expanding a State’s existing NPDES program authority (40 CFR Part 123); or

e Establishing a non-NPDES sludge program (40 CFR Part 501).

Both approaches require the preparation of the documents listed in Table 2-1, although approved
State NPDES programs need only revise their previously approved documents to address sludge

management.

States are free to choose the approach that best suits their organization and needs. If a State
does not currently have an approved NPDES program, or sludge will be regulated by a State entity
other than its NPDES agency, it will need to apply for sludge program approval through the 40 CFR
Part 501 process. If a State has an approved NPDES program and the State NPDES agency will be
assuming sludge management responsibilities, application for approval through the 40 CFR Part 123
process should be less burdensome because only modifications to its NPDES program may be
required. The two approaches differ from one another primarily in relation to the amount of
documentation a State must submit to show that its program satisfies CWA Section 405 and related

program requirements.

2.1.1 Overview of the Approval Process

A State’s decision to seek approval of its sludge management program triggers a process
designed to ensure that the State agency implementing the program has sufficient legal authority,

procedures, and resources to manage and operate the program properly. There are a number

2-1 ~

Jo



APPENDIX A

MODEL ATTORNEY GENERAL’S STATEMENT

Bek



A. Authority to Issue Sewage Sludge Management Permits

State law provides the authority to issue permits for the generation, use, and clisposal of sewage sludge, as
required by 40 CFR 122.1(b)(3) [or 40 CFR 501.1(c)(2)] to gain Program approval.

State Statutory and Regulatory Authority and Case Law:

Remarks of the Attorney General:

B, Authority to Require Permit Application Information

State law requires each pemit applicant to submit an application containing at least that information required
by 40 CFR 122.21 and 40 CFR 123.25(a)(4) [or 40 CFR 501.15(a)(2)(i-xii)} to gain program approval.

State Statutory and Regulatory Authority and Case Law:
Remarks of the Attomey General:

C. Authority to Impose Permit Conditions

State law authorizes imposing conditions in sludge use and disposal permits at least to the same extent as
required by 40 CFR 122.41(a)-(n) and 40 CFR 123.25(a)(12) [or 40 CFR 501.15(b)(1-14)] to gain program
approval.

State Statutory and Regulatory Authority and Case Law:

Remarks of the Attorney General:

D. uthority to Modi! ransfer, Revoke and Reissue, and Terminate Permits for Cause

State law allows permits to be modified, transferred, revoked, reissued, and terminated at least to the extent
required by EPA in 40 CFR 122.61, 40 CFR 122.62, 40 CFR 122.63, 40 CFR 122.64, 40 CFR 123.25(a)(21-
25), and 40 CFR 124.5 [or 40 CFR 501.15(c)(1-3)] to gain program approval.

A-4

fow



e Procedures to receive, evaluate, retain, and investigate self-monitoring reports for
possible enforcement actions;

= «. Procedures to inspect facilities and related activities to determine compliance (Class I
sludge management facilities at least once a year);

- « Procedures for sampling to:

- _ Determine compliance
- Verify accuracy of self-monitoring results

- Verify accuracy of self-monitoring sampling and analysis procedures;
© Chain-of-custody procedures to ensure admissibility of evidence;

* Procedures for the public to report information;

e Procedures to investigate reports of violation, including receiving and considering reports
submitted by the public; and .

e Procedures to maintain a management information system to support compliance
evaluation activities.

The State’s description of- its compliance monitoring program must address each of these
considerations, discussed below. If more than one agency is involved in the sludge program each
has different protocols, their description should be presented separately to eliminate possible

confusion.

Maintaining a Comprehensive Inventory of Facilities [40 1.12 nd_ 123.221
501.16 and 123.26(e)(1)}

FR

States applying for approval of a State sludge management program must submit an inventory
of all treatment works treating domestic sewage in the State. The inventory must include the
following information for each facility:

e Name, location, and ownership status (e.g., public, private, Federal);

. © Sludge use or disposal practice(s);
: e Annual sludge production volume; _

. ¢ Permit numbers of all environmental permits held, if any; and

© Compliance status.

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mm.

Plt

mr om a

. Does the chart indicate each agency/department responsible for each regulated disposal

method listed in the scope?

Does the organizational chart or the submission clearly designate the lead agency that will
report to EPA?

Does the chart specify positions responsible for the following:

Review of permit application
Permit issuance

Inspection and monitoring
Compliance tracking
Enforcement

wenn

. Does the submission include a narrative of the State’s program organization?

. Is the narrative description consistent with the organizational chart?

Does the narrative clearly state the sludge use and disposal methods for which each agency is
responsible? .

Is interagency/interdepartmental coordination described?
Are coordination activities adequate to provide comprehensive reporting to EPA?

Does the submission describe the role of local agencies?

RESOURCES

Does the submission specify the work years to be provided by each agency/department to
administer this program?

Does the submission contain charts showing all positions responsible for implementation of
the program?

. Does the description include personnel for the following:

Permit preparation

Inspections

Sampling - :
* Analysis

Data review

Enforcement

Legal

Clerical

SPANAMWE YN

. Are the work years to be provided sufficient to accomplish the activities described?

419 -



of obtaining a copy. The notice outlines the fundamental aspects of the State’s proposed program.
Finally, the notice directs interested members of the public to an EPA Regional contact who can
provide additional information on the State’s application.

, isi

Following the close of public comment period, EPA considers all significant comments in
making its decision on Program approval. The Regional Administrator, again with the concurrence
of the Director of OWEP and the Associate General Counsel for Water, determines whether to
approve the State’s program.

Notice of roved Progra:

If the program is approved, the Governor of the State is notified and a public notice (including
a summary of responses to significant public comments) is published in the Eederal Register and
mailed to all interested parties [see 40 CFR 124.10(c) for a list of interested parties]. This public
notice explains the basis for EPA’s decision. If a State’s program is not approved, EPA notifies the
State and indicates the reasons for disapproval and the revisions necessary for subsequent approval.

2.2 PROGRAM MODIFICATION PROCESS

2.2.1 Submission of State Program Modification

State programs are expected to change over time. Such changes might include, for example,
addition of a new method of sludge use or disposal; the use of general permits; adoption of new or
revised disposal standards; transfer of the program administration from one State agency to another;
or the adoption of revised State forms. In such cases, a State must request a modification to its

approved program.

Section 501.32(a) specifies that an approved State shall revise its Program within one year after
promulgation of new or revised Federal regulations. If the State must amend or enact a Statute in
order to make the required revision, such revision Must occur within two years. This type of
Program modification is necessary to avoid inconsistencies between the State program and the
Federal regulations.

Program modifications can be “substantial," thereby triggeting public notice requirements, or
“nonsubstantial." The procedures for Substantial program modification are similar to the original

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Instructions:

An Attorney General’s statement outlining adequate legal authority to administer a State sludge
management program is required as part of the State program submission (see 40 CFR 501.13). The following
is a form which, when completed and certified, may be submitted to fulfill this requirement. Use of this form is

optional.
OFFICE OF THE
ATTORNEY GENERAL
STATEMENT ON THE LEGAL AUTHORITY TO
IMPLEMENT A SEWAGE SLUDGE MANAGEMENT PROGRAM
Date
I. Background

Due to its longstanding concern for environmental protection and its continuing regulation of the use and
disposal of sewage sludge, the State (Commonwealth) of ( ) is preparing an application package to be
submitted to the United States Environmental Protection Agency (hereafter referred to as "EPA") for approval
of a State Sludge Management Program. Federal approval of this program shifts primary responsibility from EPA
to the Department(s) of ( ) of the State (Commonwealth) of ( ) for issuing permits to implement
and enforce standards for use and disposal of sewage sludge and for taking other appropriate measures to protect

human health and the environment from the adverse effects of sewage sludge in accordance with Section 405 of
the Clean Water Act (CWA).

EPA regulations allow a State (or Commonwealth) to choose whether to administer its sewage sludge
program as a component of the National Pollutant Discharge Elimination System (NPDES) water pollution control
program or as an independent activity. The State has elected to implement its sludge program [as a component
offindependently of] the NPDES program.' Federal law also requires that this application include a statement by
the Attorney General [or the ncy’s attorne: those State ncies which have int ndent legal
counsel] which discusses the State’s legal authority to impose and enforce sewage sludge management requirements
which are at least as stringent as the Federal program administered by EPA, as set forth in 40 Code of Federal
Regulations (CFR) Part 123 (40 CFR Part 501).

I hereby certify that, in my opinion, the laws of the State (or Commonwealth) provide adequate authority
to carry out all tasks necessary to implement an effective sewage sludge management program as set forth in EPA

'Note: If the State intends to submit its program as a component of its NPDES program, the Attorney
General should indicate that this Statement supplements the earlier Attorney General’s Statement addressing NPDES
authorities.

Al

Vidi



States may need to expand the scope of authority for their NPDES. programs through minor
amendments addressing sludge management. For example, additional statutory authority may be
needed to enable the State to issue sludge use and disposal permits to nondischarging treatment works
(i.e, those not covered by an NPDES permit). The State may also need to expand its jurisdiction to
all environmental media affected by sludge use and disposal. In addition, the State must submit an
addendum to the Attorney General’s statement and revisions to the MOA.

3.1.2 tutor: hority fora Program Under P:

Federal regulations require that a State desiring to administer a sludge management program in
lieu of EPA must have the authority to implement and enforce such a program. Each State agency -
responsible for program activities must have complete authority over facilities or practices subject to
its jurisdiction. For example, an agency with exclusive jurisdiction over sludge incinerators must
have all of the requisite powers to implement and enforce the sludge program as it relates to
incinerators. The following discussion identifies the minimum authority which a State statute(s) must
give to the agency(ies).

Authority to Require Persons Using or Disposing of Sewage Sludge to Comply With All
licable Federal and State Sludge Requirements

A State submission must demonstrate that the scope of the State sludge management program is.
at least as comprehensive as EPA’s program. It must also demonstrate that the State has the
authority to impose Federal and State standards and requirements and that the State will enforce these
requirements within the designated time frame for compliance set out in the CWA. These three
items are discussed in the subsections below. _

Scope of the State Program

Under the Federal program, all persons using or disposing of sewage sludge are regulated and
subject to EPA requirements. While all such persons will not be required to obtain a permit (only
treatment works treating domestic sewage sludge are required to be permitted under the CWA), all
persons who are users or disposers must comply with the technical use and disposal requirements
developed by EPA. Consequently, a State administering a sludge program on EPA’s behalf must
also have authority to ensure compliance by all persons using or disposing of sewage sludge.

3-3

PF



State Regulatory Authority

(citations)
2. General permit [40 CFR 122.28]

a. Written to cover a category of discharges
or sludge use or disposal practices or
facilities within a geographic area or
political boundaries __
b. Written to cover facilities with same
activities and subject to same standards
and requirements __.
¢. Individual facility, whether or not covered
by general permit, may be required to
obtain an individual permit __.
d. Any owner or operator may request to be .
excluded from the coverage of the general
permit by applying for an individual permit
e. Applicability of general permit to a
Particular individual is automatically
terminated upon the effective date of an
individual permit :
f. Individual excluded from a general permit
solely because individual permit exists may
request that the individual permit be revoked,

and that it be covered by the general permit
3. Minor modification of permits [40 CFR 122.63] .
a. Correct typographical errors :
b. Require more frequent monitoring or reporting
c. Change an interim compliance date
d. Allow for a change in ownership when no
other change occurs ee

IV. Requirements for Enforcement Authority
[40 CFR 501.17]

A. Specific remedies for violations of State
sludge program requirements [40 CFR 501.17(a)(b)}

[40 CFR 123.27] ;

1. Injunctive relief

2. File suit to seek civil penalties in the amount .
of at least $5,000/day for each violation

3. Press criminal charges, seeking monetary
penalties of at least $10,000/day for each .

willful or negligent violation
4, The maximum civil penalty or criminal fine is
assessable on a per violation per day basis

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Section 'V._ Reporting
The reporting provisions contained in the NPDES MOA shall remain in effect. In addition:

1. The State will transfer to the Regional Administrator notice of every action taken by the State related to any
permit application, including a general permit, except for those actions for which permit review has been waived.

2. The State will forward all permit applications to EPA unless review has been waived.

. 3 A copy of every permit issued to a Class I sludge management facility will be transmitted by the State to
"the Regional Administrator. Copies of other final permits issued to other treatment works treating domestic sewage
shall be transmitted to the Regional Administrator at his/her request.

7 4, The State will forward a list of all facilities scheduled for compliance inspections to EPA.”

Section VI. Enforcement and Compliance Monitoring

The enforcement and compliance monitoring provisions contained the NPDES MOA between (State) and the
Regional Administrator shall apply to treatment works treating domestic sewage and to sludge users and disposers
and to sludge uses and disposal practices. Additionally, the following provisions have been agreed upon:

1. The State and EPA shall coordinate enforcement activities, including the following:

a. The State will notify EPA of all impending enforcement action.

b. EPA may request that a State conduct a compliance inspection, or conduct one itself.. EPA will
normally provide the State with seven (7) days notice of its intent to perform a compliance inspection
(exclusive of inspections designed to uncover possible criminal conduct).

2. For purposes of sludge management facilities, compliance inspections may include toxicity testing, sludge
sampling and groundwater sampling.

Section VII. Program Review

The program review section of the NPDES MOA shall remain in effect. In addition, the responsibilities
delineated in this section shall apply to the sludge management program implemented under 40 CFR Part 123.

Section VIII. Independent EPA Powers

The Independent EPA Powers section of the NPDES MOA shall remain in effect. In addition, nothing in
this MOA shall be construed to limit the authority of EPA to take action pursuant to its powers under the CWA
or to limit its oversight responsibilities with respect to sludge management program administration. This MOA
is for the administrative convenience of EPA, and does not confer any rights to violators.

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«

 Self-monitoring, reporting and record keeping requirements;
« Standard conditions; and

¢ Other conditions to carry out the objectives of the statute and regulations as necessary .

These items are discussed in each subsection below.

Sludge Standards and Requirements

The adoption of Federal sludge standards as State standards was previously discussed. Even
though these standards are enforceable in the absence of a permit, a State’s regulations should
specifically direct the State agency to include them, when appropriate, in the permits of treatment
works treating domestic sewage. Once in the permit, the treatment works is put on actual notice of
the standards and is required to submit compliance information.

‘compliance Schedul

As noted earlier, the CWA establishes a deadline of one year from promulgation for final
compliance with the Federal sludge use and disposal standards (except where construction is needed
for compliance, in which case the deadline is two years). Consequently, any permit issued prior to :
this deadline should place the treatment works on a schedule to come into compliance within this
time frame. In no case may a compliance schedule extend beyond the statutory deadlines [see 40
CFR 501.15(a)(6) for further information].

Monitoring, Ri ind Recor: in:

State regulations must authorize the State agency to impose self-monitoring, reporting, and
record keeping requirements through permits. The self-monitoring conditions should address the
sampling location(s), type, frequency, and analytical methods to be used. The location must be
representative of the sludge quality. The analytical methods and sample types used must be those set
out in 40 CFR Part 136, unless Part 503 (when promulgated) directs otherwise. Sampling techniques

for sludge are discussed in EPA’s POTW Sludge Sampling and Analysis Guidance Document,
August 1989. .
3-15



program approval process with one significant difference: The time periods (i.e., 30 days for
completeness determinations and 90 days for EPA review) do not apply. There are no time limits
"for reviewing program modifications (see 40 CFR 123.62).

Minor changes in forms, procedures, and regulations will generally be considered nonsubstantial
modifications. If the Regional Administrator determines that a State’s proposed modification is
nonsubstantial with concurrence of EPA Headquarters, the Regional Administrator may approve or

deny the revision without providing public notice and opportunity to comment.

As with program approvals, early EPA involvement will facilitate action on program
modification. The EPA Region will help the State determine the documentation necessary for each
program modification.

2.3. WITHDRAWAL OF STATE PROGRAMS

2.3.1 Voluntary Withdrawal

Under 40 CFR 123.64(a) and 501.34, a State may voluntarily transfer program responsibilities
back to EPA by giving the Regional Administrator 180 days notice, and by providing a plan for the
orderly transfer of relevant program information to EPA. The Regional Administrator will publicly .
notice the transfer, in the same manner as the program approvals, at least 30 days in advance. States
must relinquish all sludge program administration previously approved by EPA.

2.3.2, Involuntary Withdrawal ; ,

CWA Section 402(c)(3) and EPA regulations in 40 CFR 123.64(b) and 501.33 provide for EPA
withdrawal of its approval of a State program that no longer complies with Federal requirements.
Program withdrawal is considered an extreme remedy, but will be invoked if a State is unable or
unwilling to take required corrective action to solve State program deficiencies. A more detailed

_ description of the withdrawal procedures may be found in 40 CFR 123.640)@), incorporated by
reference into 40 CFR 501.34.

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4.4.1 NPDES Program Permitting

Since approved NPDES States seeking approval of a State sludge management program under
40 CFR Part 123 already have permitting procedures in place, these States need only submit changes
made to incorporate sludge permitting activities. The State’s program description should include new
or revised permit application forms and standard conditions for permits. Changes to current
procedures for reviewing permit applications, drafting permit conditions, taking permit actions, and”
providing public notice, if any, should also be described in the program description. For a detailed ;
description of these changes, the State should refer to the following discussion of permitting
requirements for the Part 501 program submission.

4.4.2 Part 501 Program Permitting

The checklist at the end of the chapter describes three major elements in the permitting
process: permit application; permit development and contents; and permit issuance. To assist State

personnel in developing a program submission, these elements are described below.

Permit Application

The program submission should describe procedures for identifying those facilities or sludge
use and disposal methods that will be permitted. It should also describe the procedures that
permittees will be required to follow to obtain a permit under the State’s program. For example, the
State may choose to send a formal letter transmitting the State sludge regulations, a permit
application and the name and phone number of a State contact person to whom the applicant may

direct questions, or rely on some other method to inform treatment works of their obligation to
obtain a permit.

In accordance with 40 CFR 501.12(d), a sample permit application form must be provided in
the State’s submission. The State should compare its application information requirements with the
minimum application information required by the Federal regulations [40 CFR 501.15(a)(2) and
122.21(c)], as listed in the checklist at the end of this chapter. If the State’s applications differ from .
agency to agency, the State should submit a copy of each application form, designating the types of

facilities for which it will be used.





ADDENDUM
TO THE
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
MEMORANDUM OF AGREEMENT

BETWEEN

(State Agency)
AND THE

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, REGION __
TO INCORPORATE AGREEMENT CONCERNING SLUDGE USE AND DISPOSAL

The Memorandum of Agreement (MOA) between the (State) and the Regional Administrator of ‘the U.S.
Environmental Protection Agency (EPA), approved on , is hereby modified to define the State and
EPA's respective responsibilities for the establishment, implementation, and enforcement of the State’s Sludge
Management Program in accordance with regulations promulgated under sections 402 and 405 of the Clean Water
Act, and as described in the program description.

Section [General

1. Nothing in this Agreement should be interpreted to restrict EPA’s oversight responsibility for all aspects of
a Sludge Management Program.

2. This Agreement shall become effective when approved by the Administrator.

3. Nothing in this chapter shall limit or relieve the parties of responsibilities established by the NPDES MOA -

of which this is an addendum.

4. The State and EPA will negotiate priorities for implementation of a Sludge Management Program and
inspection of POTWs and other sludge users and disposers.

5. The State’s noncompliance with any of the terms contained herein is grounds for withdrawal of EPA
approval of the State’s Sludge Management Program.

Section I]._ Transfer of Permit Administration

1. Upon approval of this MOA, EPA will promptly deliver to the State Program Director all pending permit
applications on which no final action has been taken. Other information relevant to these applications and to
program operations in general, including support files, monitoring reports, compliance reports and previously issued
permits, shall accompany these pending permit applications. This information shall be transferred to the State
Program Director within ____ days of approval of this MOA at the following address:

State Sludge Management Program Director
(address)

2. Sludge permits currently in effect shall remain in effect after approval of a State Sludge Management
Program. EPA shall transfer the duties of permit administration to the State Director within __ days of approval
of this MOA. All information relevant to the administration of the State permit program shall accompany these
permits. :

3. If the State lacks the authority to administer Federally issued permits, the State will issue a permit with
provisions identical to the EPA-issued permit currently in effect, which will simultaneously be dissolved.

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Several other concerns must also be addressed. First, like NPDES permits, the duration of a
sludge permit may not be extended beyond the original five year period through a modification.
Second, either the State agency or any interested person must be allowed to initiate the modification
Process. Modification requests submitted to the State must be in writing and supported by reasons
for the change.

A treatment works has no inherent right to its permit. The permit may be terminated if the
permittee violates any of its conditions or if changes in conditions require the elimination of the
permitted activity. State regulations must provide the State with the authority to terminate permits
during their effective period. Finally, EPA regulations allow the State agency to administratively
continue expired permits beyond their expiration dates where the Permittee has submitted a complete
application for renewal but the permit has nevertheless not been reissued in a timely manner [40
CFR 501.16(e)(1) and 122.6).

try and In: fon

The existence of sludge standards alone will not ensure that public health and the environment
will be protected from improper use and disposal. The State must be authorized to conduct
compliance monitoring activities to ensure that these standards are followed. Compliance activities
include:

e Entering treatment works and other use and disposal facilities at reasonable times;

© Inspecting the premises for compliance with standards and permits where applicable;*

¢ Sampling the sludge quality before it leaves the treatment works or after it has been used or
disposed; and

© Accessing and copying the permittee records concerning sludge.

‘EPA regulations require that approved States inspect all Class I sludge management facilities at
least once per year [40 CFR 123.5(e) and 501.16]. Class I sludge management facilities are POTWs
required to have an approved pretreatment program or which have sludge use or disposal practices
that have the potential to adversely affect public health or the environment,

3-20

a



regulations. This opinion is based on the reasoning, assumptions, and limitations set forth in the sections below.

Copies of all relevant legal authorities (both statutory, regulatory, and case law) are attached to this statement.

w. rtment’s Authorit Regulat lu ni ent Generally

State law provides the Department(s) with authority to tegulate the storage, transportation, and use or
disposal of sewage sludge by treatment works treating sewage sludge or other end users or disposers. The sections

below discuss this authority in detail.

A. Authority to Regulate Persons Storing, Transporting, Using, or Disposing of Sewage Sludge

State law provides the authority to regulate Persons involved in storage, transportation, and use or disposal
of sewage sludge. This includes the authority to require compliance with standards issued under Section 405(d)
of the CWA, as required by 40 CFR 122.1(b)(3) and 40 CFR 122.4 for 40 CFR 501.1(c)(1)] to gain program

approval.

State Statutory and Regulatory Authority and Case Law:

Remarks of the Attorney General:

B. Authority to Regulate Methods of Storage and Transportation of Sewage Sludge

State law authorizes the regulation of methods of sewage sludge storage and transportation, as required by
40 CFR 122.1(b)(4) [or 40 CFR 501.1(d)(1)] to gain Program approval.

tatut id latory Authority and Law:

Remarks of the Attorney General:



TV. Conflict of Interest State Statutory Authority
(citations)

A. Statement indicating that no member of any permit-approving
board or body shall receive a significant portion of income
from permit holders or applicants [40 CFR 501.15(#)(1)]

[40 CFR 123.25(c)]; or

B. For non-NPDES programs only, certification from the board
or body that it meets a conflict-of-interest standard imposed
as part of another EPA-approved State permitting program
[40 CFR 501.15(f)(2)]

V. Compliance Monitoring

A. Authority to inspect and conduct surveillance to independently
determine compliance or noncompliance with regulations and
permits [40 CFR 501.15(b)(9)] [40 CFR 123.26]

B. Authority to require submission of technical data by regulated
community [40 CFR 501.15(b)(8)] (40 CFR 122.41(h) and ()]

VI. Enforcement Authority [40 CFR 501.17

A. Authority to abate violations of State sludge program
requirements [40 CFR 501.1(c)(5)] [40 CFR 123.27]

B. Specific remedies for violations of State sludge program
requirements [40 CFR 501.17] [40 CFR 123.27(a) and (b)]

1. Authority to seek injunctive relief

2. Authority to assess or seek civil penalties in
the amount of at least $5,000 per day per violation

3. Authority to assess criminal penalties of at least $10,000
per day per willful or negligent violation

3-23 _